The United States’ Unamendable Constitution | Hacker News Reader

The United States’ Unamendable Constitution

newyorker.com

135 pointspsteitz713 comments

It's an interesting article and if you bounced off it because you had a visceral reaction to the premise, like I did at first, I'd recommend taking another whack at it. Jill Lepore, if you're not familiar with her work, is a historian with a reputation as a more rigorous version of people like Howard Zinn.

I don't think it's a good article though. In particular, I don't think it coheres. It's about how the modern Constitution has become "un-amendable", but it spends a big chunk of the middle of the piece demonstrating the Constitution was never really all that amendable: successful amendments are extraordinarily rare, especially when they're about big-ticket issues. Our biggest structural changes occurred after an enormous civil war.

There's a sort of obvious framing to the piece that the Constitution should be more fluid and easy to amend. I think 2022 is a very weird time to prioritize that. I'm not a doomer about US politics, but they're not in a very good state right now. Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted.

I'm a liberal, in a cohort of people this article portrays as atypically open to changing the Constitution, and I think the rigidity of the Constitution is probably it's greatest strength.

>"Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted."

I feel like the author is looking at using amendments as a way to implement legislation that is permanent. Our Federal constitution is fairly concise, whereas some State constitutions are so easy and readily amendable that legislation gets codified in almost every session [1]. The challenge with doing this is that the constitution itself converges into just another body of law.

[1] https://en.wikipedia.org/wiki/Constitution_of_Alabama

Edit: Instead of "permanent", "decisively" would be more appropriate. A constitution that can easily be amended can just as easily be un-amended. A response to this comment said "way to settle national controversies" which seems far more fitting than what I originally wrote.

It's another way in which the article doesn't cohere, because it seems clear that Lepore sees amendments as in part a way to settle national controversies (like birthright citizenship or the right to bear arms). But an amendable Constitution doesn't settle anything, as you point out.

What it really does is sap political power from the Supreme Court, which is a reasonable goal for someone like Lepore to have right now.

Congress passing laws saps power from the Supreme Court, and is easier than Amending the Constitution.

The Supreme Court can then strike down those laws via judicial review, a power not enumerated in the constitution.

> a power not enumerated in the constitution.

But at least with two hundred years of general acceptance, so clearly there was something to it.

So, two hundred years of general acceptance (well, aside from that civil war thing where vastly differing fundamental interpretations of how the country can be governed were tested by the tried and true debating tactic of 'how many boys can we send over the trenches') is iron-clad.

But say, 80 years (FDR's expansion of executive power, which reactionaries in the courts are currently dismantling) is not?

Hardly anyone alive remembers it in any other way by this point, and everyone involved in setting that state of affairs has been dead and buried for a generation. And yet...

It's also strange how people seem to be fine to cherrypick a superset of (constitution + a bunch of other two-centuries old political babble), but exclude mountains of conflicting (two centuries-old political babble). It's almost as if the desired outcome is pre-determined, and we're just looking for fig leaves to justify it.

The idea of judicial review as unconstitutional is a fringe view not worth taking seriously. It was established by the framers during the time of the framers. It was a norm in law in the systems that preceded the Constitution, both in the colonies and in the post-revolutionary governments. It's mentioned in the Federalist Papers. When you're arguing with Publius, you're in crank territory.

I'm not arguing with Publius, I'm saying it would be preferable if it were explicitly stated -- same as e.g. a right to privacy or a less ambiguous 2nd amendment.

As for what the framers thought, Wikipedia has some choice quotes, including from Thomas Jefferson: https://en.wikipedia.org/wiki/Judicial_review_in_the_United_...

Our Federal constitution is fairly concise

Concise to the point of vacuous. It says practically nothing. It describes only the barest outlines of government, and effectively all of the actual implementation has been a matter of legislation, judicial decisions, and tradition. Individual words are scrutinized as if they will somehow be unambiguous if we stare at them long enough, or bring in enough cherry-picked outside context.

The section on the courts is especially hilariously short. It basically says "We should have one". Everything after that -- included the vaunted ability of the Supreme Court to "interpret the constitution", is a matter of them deciding that it was something they were going to do and everybody else going along with it.

I don't think this is true. For instance, compare US defamation law to UK defamation law. The distinctions, which are large, are entirely because of the structure of our constitution. Or look at the rules of evidence in Europe, where you don't necessarily have a right to avoid self-incrimination, or to exclude evidence gained unlawfully.

All distinctions which were created by amendments

IMO we should probably differentiate between the BOR and amendments which came later

> IMO we should probably differentiate between the BOR and amendments which came later

Of the 27 amendments that have been ratified, the most recent was one of the twelve submitted as the Bill of Rights, so there are literally none that have come later. Sixteen have come in between (one from the BOR was never passed.)

Also, the most relevant amendment to the issues upthread, for most purposes in US law (since things like defamation law and most of the cases where the evidence differences matter are state, not federal) is the 14th, which is not part of the BOR.

Silly nitpicks don't change the fact the first 10 amendments were passed in 1791.

Universal suffrage amendments came later and we like those too.

> It says practically nothing.

Is that not the whole point? "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This basic fact eludes the intelligentsia who all assume that federal power is The Way Things Are (or Should Be). They assume it's the default position, when in fact the Framers intended it to be a bare-bones fallback for only basic things like the national defense.

They found a nice workaround with federal taxation though. There's a lot of instances where the states technically have the power to pass different laws than what's federally blessed. However, they'll lose federal funding if they do. And the majority of the time, that's just not a good trade-off.

So the federal government is essentially taxing the state's citizens, then giving some amount of it back to the states in exchange for rowing the boat in the right direction. States that increase their own taxes to compensate for refusal of federal funds would become noncompetitive to other states who don't.

That's because the SCOTUS is inherently Federal, and so is biased toward Federal power.

The biggest strike against states rights in recent memory was the removal of the SALT deduction, one of the strongest protectors of state power. Now states with higher tax burdens are much less competitive, because the citizens of that state don’t benefit nearly as much for what they pay.

The SALT deduction was a massive thumb in the eye to those of us that didnt get it. Why should local tax burden have anything to do with federal taxes? It was just a handout at the end of the day.

Without it, we have a race to the bottom with social services and infrastructure. A state with better infrastructure cannot be tax-competitive with another state that simply sucks on the federal government’s teat for all its needs.

The biggest handout of all is small states getting two senators despite having 1/50th the population. SALT deductions are nothing in comparison, you could always redirect federal money to make sure red states are net beneficiaries of federal money… and whaddya know, even with the SALT deduction they were.

> another state that simply sucks on the federal government’s teat

It's antithetical to the federal nature of the US that the overwhelming majority of tax dollars are paid to the federal government and not to state and local governments. The federal government's share of taxation should be limited to support its constitutional mission, and more should remain at the state and local level to achieve state and local missions, including things like social services and infrastructure.

That way, some states may choose to have an expanded role of government with high levels of social services and infrastructure spending, some may choose the opposite, and none are left sucking on the federal teat -- the milk from which, may I remind you, are collected from people who live in every state, not just the ones with "better infrastructure".

In the end government money is just people's money taken by taxation. When you let the federal government take most of it, you allow it to browbeat the states into doing whatever the federal government wants, conveniently escaping the limitations that the Constitution placed on it.

Okay, I see you and I are coming at this from very, very different philosophical viewpoints. I do not care what the founders intended, I don’t live in 1786. I am sympathetic to Elie Mystal’s view from the book Allow Me To Retort towards the Constitution.

To summarize:

“Our Constitution is not good. It is a document designed to create a society of enduring white male dominance, hastily edited in the margins to allow for what basic political rights white men could be convinced to share. The Constitution is an imperfect work that urgently and consistently needs to be modified and reimagined to make good on its unrealized promises of justice and equality for all. And yet you rarely see liberals make the point that the Constitution is actually trash. Conservatives are out here acting like the Constitution was etched by divine flame upon stone tablets, when in reality it was scrawled out over a sweaty summer by people making deals with actual monsters who were trying to protect their rights to rape the humans they held in bondage.”

Excerpt From Allow Me to Retort Elie Mystal https://books.apple.com/us/book/allow-me-to-retort/id1549926... This material may be protected by copyright.

The economy turns out to be a pretty big deal, and Commerce Clause aside, states by design have little leverage over it: their borders being open, capital can always just head next door. Small federal government is basically equivalent to right-libertarian economic policy. In an alternate universe you might see liberals content to build welfare states at state level, but in this one it's not really an option.

The framers were well before the Industrial Revolution; if they intended a right-libertarian bias, the economy they wanted unchecked was a smaller and tamer beast than this one. But anyway, they did give us the Commerce Clause.

>The framers were well before the Industrial Revolution

They were well before radio, TV, internet, trains, automobiles, airplanes, nuclear power, and many other things that do not strictly respect state lines. "Leave most decisions to the states" made a lot of sense in 1789 but we live in a different world now.

I don’t really buy this. Somehow Europe manages pretty well with much smaller and more granular country level decision making units.

The EU famously makes a lot of policy!

Only barely more than half of the European countries are in EU, and 20 years ago, less than a third was.

Not compared to what democrats want the US federal government to do. EU countries have their own gun laws, separate healthcare, retirement, and unemployment systems, separate housing and labor laws, etc. Separate laws on abortion, same sex marriage, and other social issues.

This is weird, because you're crediting sovereign states for having their "own" national health care, retirement, unemployment, and housing systems, and in the wildest dreams of the Democratic party we wouldn't have a national system for all of these things.

It makes sense if you sort of skim over the idea that Germany, Sweden, and Spain are just "states" in a federation. But obviously, they are not.

@debtinflation was making a pragmatic argument: that modernity renders these granular state lines obsolete. My point is that the EU manages to keep chugging with all these little sovereign states of 5-10 million people managing their own healthcare and retirement systems

Maybe a US state is something legally different than an EU country, maybe not. I would say the two weren’t intended to be different, and whatever trends have produced such a difference were a mistake. Either way, that doesn’t address the practicality question.

Look at the specific examples I provided. European countries closely coordinate their regulation of radio spectrum, air traffic control, nuclear power, and pollution through the EC even if individual countries have separate national regulators on paper.

Sure. Obviously the US does stuff. But that’s very limited compared to what happens (and people want to happen) at the federal level US.

We do have to acknowledge that the Commerce Clause has been twisted to federally regulate things that are probably outside what the framers intended. In Wickard v. Filburn, the Supreme Court gave the federal government authority to fine a farmer for growing wheat to feed animals on his own farm! Neither interstate nor commerce involved. Or Gonzales v. Raich, or any number of other cases.

The Bill of Rights is particularly brilliant in its conciseness.

A lawyer once said that "show me a contract that's one page, and I won't be able to break it. Show me one 20 pages long, and I'll break it."

Yet somehow it still gets broken.

So, by your standard, the Bill of Rights can’t be “broken” by a lawyer, that is, they can’t get a court to apply it in something other than the intended manner. But virtually every significant phrase in the Bill of Rights has been applied in multiple different ways by different courts over the years, so clearly lawyers have had no trouble breaking it.

> so clearly lawyers have had no trouble breaking it.

You are missing the point. The point is comparing it to a hypothetical constitution that is 20 pages long, instead of 1 page long.

So, the 20 page long constitution, is probably easier to break, despite you misleading focus, on the irrelevant point, of the exact way the statement was phrased.

The BoR has been under continuous and relentless assault for well over two centuries. It is battered and bloodied, but has held up surprisingly well.

The recent abortion ruling disagrees with you. Same with the Patriot Act.

> The recent abortion ruling disagrees with you.

How?

> The recent abortion ruling disagrees with you.

While it is in many ways the main provision that gives meaningful impact to rights both in and beyond the BOR (though the 13th Amendment competes with it on that front, since if people can be treated as property instead of people, they have no rights) by applying them to the main locus of government authority, the states, which the BOR itself neglected to do, the 14th Amendment, which was at issue in Dobbs, is not part of the Bill of Rights.

So Dobbs doesn’t illustrate an assault on the Bill of Rights so much as its irrelevancy in the absence of subsequent amendments.

Yep. It’s like software in that sense. Show me a concise program, and I may be able To find some bugs. Show me a complicated behemoth, and I guarantee it.

The founders understood the nature of power, and thus the importance of decentralization and diversity.

This lawyer must not have been aware of the marvelous legal doctrines of mental gymnastics and motivated reasoning that often get applied to such phrases as "persons and effects" or "shall not be infringed". And let us not forget the definition tricks that get played with words like "search" and "speech".

edit: Sarcasm should be obvious. Point is if enough key parties want to ignore the law it gets ignored and upheld.

Oh, I'm aware of that. I have a bone to pick with a lot of the SC rulings.

But also consider that nobody has yet been put in jail for harshly criticizing the President. And you can still buy a gun.

It may appear that way, especially if someone doesn't make it their life's work. But although concise, it is rich in meaning.

You call out Article III, for example, so I'll focus on that. It doesn't say "we should have a Supreme Court and other courts Congress may establish." It says the judicial power of the United States shall be vested in them, and that judges shall be appointed. It isn't magisterial or clerical power. It clearly establishes the United States as a common law system. That's further reinforced by the use of the term jurisdiction — literally the power to say what the law is. It's clear that any and all courts established by Congress are "inferior" to the Supreme Court, which is a significant protection of judicial independence. It's also clear that Congress can't reduce their pay as retribution - ditto. And that's just the first section.

It's a much richer document than your previous comment gives it credit for.

Your entire argument falls under when you take into consideration that the very judicial power that's "vested" to the Supreme Court in its jurisdiction is solely delegated to Judges that Congress appoints.

Congress should not get to seat its own checks and balances, and it doesn't particularly matter if Congress is only allowed to establish and ordain inferior courts to that of the Supreme Court, if they already effectively establish and ordain the Supreme Court's delegations - and thereby its power.

It never grants them the ability to nullify laws via judicial review. That is a power they invented themselves.

Yes, it does. I think I was pretty clear about that. Help me understand where you're confused?

Is it that you don't see the linkage between the text of Article III and Marbury's famous line, "it is emphatically the province and duty of the judicial department to say what the law is"? Because jurisdictio literally means "to say what the law is"

You are doing this weird thing I see on this web site at times when someones takes a court case they like and accepts whatever the judge states carte blanche. No further reading required.

The fact judicial review is not in the constitution is not controversial.

Here's what Administrative Office of the U.S. Courts web sight says:

"The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803)."

https://www.uscourts.gov/about-federal-courts/educational-re...

I'm not just someone "on this website," I'm a Harvard-educated lawyer in the federal government with over a decade of experience, including litigating Constitutional issues in federal district court. I assure you, there have been years and years of "further reading" and it was emphatically required.

It's a trendy take to say that judicial review isn't in the Constitution, and that may be superficially true, but it ignores two important facts that contradict that take:

(1) Article III's explicit grant of "appellate jurisdiction ... as to law"

(2) The Framers' own words in the Judiciary Act of 1789, which explicitly anticipates cases "draw[ing] in question the validity of a treaty or statute of, or an authority exercised under the United States, [where] the decision is against their validity" and reaffirms that such decisions may be "reversed or affirmed in the Supreme Court of the United States."

It is very clear what "appellate jurisdiction ... as to law" in "cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made" means. And for anyone who has any lingering doubts, just look to how the Framers implemented it in the very first Judiciary Act, less than seven months after the Constitution went into effect.

I lived in Alabama for quite some time. For anyone not reading the wikipedia article (and tbh, I haven't either, but am quite familiar with it's constitution) it was expressly written to consolidate power in the "planter" rich, white, ruling class and take power from both Blacks and lower SES whites, with a bit of a sop to the more independent farmers of the North Alabama hills (remember this was a time of far from universal suffrage) The result was that most cities and counties don't have a lot of direct control, and any little thing has go through the amendment process: e.g. this year question 8 on the ballot refers to Shelby county's regulation of sewer rates

It's a shitshow through and through

I know Florida has some "law-like" amendments. At least a couple recent ones, specifically the legalization of medical marijuana and minimum wage increases, came about because it's a way for the populace to directly vote on and implement laws that state representatives are refusing to pass or even discuss.

The US Constitution is still the best one in the world.

The 18th Amendment (Prohibition) is an example of what can go wrong with amendments.

Actually it's not.

Constitution design is an academic field, a very niche area of political science, and nobody would ever implement anything like the US Constitution today. It would be like using ALGOL for a new project today instead of Python or Java.

The US Constitution was very much a version 1.0 project, written before people even knew political parties would be a design constraint. Constitutions are on like version 5 or 6 now. (I'm making up numbers but you get the idea.)

You can't compare Constitutions to programming languages in terms of the prevailing consensus on their utility.

While the latter has a vast test bed of real world utilization that reveals PL efficacy, the former can only be evaluated from the standpoint of theory, with a heavy heap of ideology.

You don't think academics are constantly comparing the real world utilization of constitutional forms...? Allow me to introduce to you, comparative politics:

https://en.wikipedia.org/wiki/Comparative_politics

Lest you think this is ideological or theoretical, no -- it's entirely about collecting data of real-world political operation, how similar or different constitutional structures result in similar or different outcomes given similar or different populations and histories.

The real world data is extremely limited, given there are only ~200 countries in the modern era, and the huge span of time over which the full impact of a constitution is seen.

It's incomparable to PLs, which have perhaps billions of case studies on which comparative analysis can be done.

Remind me how many PL's there are again.

Not GP here. I would estimate the number of programming languages is in the thousands, but the number of languages with multiple implementations and long-term maintained programs written in it is probably below one hundred. All the others do not contribute a meaningful body of real-world data for the purpose to learn from programming language design. But they might have contributed knowledge of about the design space of programming languages.

Actually the more I think about it, the more useful I do find the comparison between constitutions and programming languages.

Because there are probably only ~200 PL's with truly significant usage, and they tend to have a variety of purposes and be used in historically different contexts -- much like constitutions.

The same arguments that programmers have over declarative vs imperative is much like the arguments political scientists have over parliamentary vs presidential. Static vs dynamic type checking is much like civil law vs common law. Perhaps the rise of congressionally-created federal agencies is akin to the rise of object-oriented programming?

And there's similarly nothing "scientific" in proving that one programming language is "better" than another, but people have strong opinions, and experience will tell you which ones are good ideas to pick for a project and which ones are not.

By the way, I'm not sure you know what a case study is -- it's a report written by a person. Nobody's written billions of those. And you don't do comparative analysis on case studies -- a comparative analysis is a case study, where the cases are countries (or programming languages).

I'm also wary to use programming languages as a metaphor to advance a view about writing constitutions.

I can agree with the broad point that inertia is a major cause for constitutions to stay the same over time. But I disagree with the original commenter's implication that more recently-written constitutions tend to be better than older ones due to lessons from the past, because of the idea (perhaps relating to yours) that contemporary political and ideological considerations can introduce weaknesses into more recently-written constitutions, which overlook potential lessons from the past.

People don't learn very well from the past.

Ah, interesting. How many have they tried experimentally?

Parliamentary systems are generally considered more stable than presidential systems and tend to more naturally express multiparty politics (Australia and UK not withstanding).

Even while many people in the US might like the things a parliamentary system has to offer, there is no viable way to transition to one culturally. As much Americans hate how politics works presently, they hate the idea of replacing it even more. The socio-cultural hesitancy is real, paradoxical, and cannot be ignored.

> Australia and UK not withstanding

..cites two of the most important examples

One of the key features of a lousy theory is when you need to ignore the most prominent data points in order to have it be applicable.

> Parliamentary systems are generally considered more stable

Hm... Germany's system changed at least 3 times in the 20th century. France is on its Fifth Republic. Italy is a shitshow.

To me it seems that the oldest democracies (UK, US) are the most stable (even today!) and they're majority systems (first-past-the-post).

To actually do comparative politics, you need to regress over regimes not just call out counter examples. This is a quantitative problem, not a logic problem.

No, because I don't care about averages. I care about minimum, and maybe maximum.

The worst case for representative democracy is literally Hitler. The second worst (you could argue that Hitler was a unique set of circumstances) is the dysfunctional German, Italian, or French states.

The best case is probably Switzerland (party proportions barely change, I assume because the power of parliament is diminished because of elements of direct democracy that Swiss practice).

What's the worst case for first-past-the-post democracy?

Thanks for being transparent. When I say stable, I'm referring to regime-years which is a standard way of operationalizing stability in comparative politics. It makes sense that if you're interested in things other than regime-years then most of what I have to share isn't going to be interesting to you.

Replacing a prime minister after 6 weeks is an extremely short term, even for Italy. The current German constitution --- basic law to be precise -- has lasted twice as long as the previous German constitution. And its end doesn't appear on the horizon. The stability of the US system looked quite dire from the outside less than two years ago.

> The stability of the US system looked quite dire from the outside less than two years ago.

Only if you believe fake news media propaganda who equated "mostly peaceful protest" with "coup" (for real examples of a coup, look no further than Libya, Ukraine, or Myanmar; hint: it usually involves guns & people getting killed).

People were killed in Washington.

Elaborate on this. How do political parties affect the equation here, and what would the more modern approach be? Any texts you can recommend regarding this?

Well, checks and balances in the American constitution were founded on the idea that there would be no "factions" (parties), and so the three branches (legislative, executive, judicial) would balance each other without any single group ever taking over. In reality, when Democrats or Republicans capture all 3 branches, it utterly defeats the entire premise of the Constitution.

The modern approach is generally a parliamentary system rather than a presidential system, and multiparty proportional representation (sometimes with multi-member districts) rather than two-party first-past-the-post single member districts. Some places to start:

https://en.wikipedia.org/wiki/Parliamentary_system

https://en.wikipedia.org/wiki/Proportional_representation

If you want to look at more "advanced" constitional forms, then consociationalism is a good place to start, although much less widely adopted and more controversial as to whether it's progress or not:

https://en.wikipedia.org/wiki/Consociationalism

>* Well, checks and balances in the American constitution were founded on the idea that there would be no "factions" (parties), and so the three branches (legislative, executive, judicial) would balance each other without any single group ever taking over.*

I’m not a constitutional scholar but I take issue with that characterization.

Federalist #10 by James Madison is all about factions, how they are inevitable, and how the system of government should be structured so that their self interests balance out for the good of the nation. Madison wrote the Virginia Plan which proposed the three branches of government and he wrote down exactly what his thinking was at the time. For most of the 18th century the British empire was a single party state ruled by the Whigs which is what they were trying to avoid by explicitly allowing room for many factions.

Jamelle Bouie (NYT) is something of a constitutional scholar (albeit of the popular book based variety) and he would eviscerate your argument. Recent pieces by him in NYT explain specifically why Madison's ideas about factions are not ideas about political parties.

https://www.google.com/search?client=firefox-b-1-d&q=bouie+s...

He's responding to a comment that explicitly called factions parties

For a text, The Economist published a great introductory article (though paywalled) into modern approaches to national constitutions [1] this August, shortly before a failed referendum in Chile to change the country's constitution. An excerpt from the article notes that there is no "template for how to write the ideal constitution," with different approaches having reasonably good results (e.g. the UK's uncodified constitution versus the US's written constitution).

From The Economist's article: "[...] But academics have noticed patterns. Frequently changed constitutions are often a symptom of political corrosion, and tinkering can cause chaos in turn. Attempts to amend charters have led to violence in Burkina Faso, Burundi and Togo among others in recent years. The world’s longest charters, such as India’s and Brazil’s, are also among the most changed.

"There is a strong case for brevity, too, in which constitutions establish the ground rules of how a state functions and leave the specifics to politicians. Overly long constitutions often create conflicts between articles that can only be resolved with further tampering. And “if everything is highest law, then nothing is highest law anymore,” points out Dr Versteeg. Omnibus amendments require voters to balance the merits and drawbacks of many changes at once, making it harder to generate consensus."

The viewpoint by the writer of The Economist's article would actually conflict with the view held by the original commenter, as it notes that many more recently-written constitutions that have taken different approaches from older constitutions have contributed to political instability (though the writer also acknowledges that other factors have also been at play behind instability).

[1] https://www.economist.com/international/2022/08/25/dictators...

It depends on whose interests are being served. In software, version 1.0 could be what made the project successful with the user-base while subsequent versions introduce features which help other entities such as advertisers & the interests of anonymous share-holders to extract profit & control from the user-base. Sometimes, popular features, such as an open api, are removed to consolidate the market as well.

I'll take a version 1.0 which is focused on reifying the natural God-given rights of man vs version 3.0 which reifies power of the State & Corporate "persons" over man.

A corollary, which I have discovered with Philosophy, maintaining software, performing large-scale refactoring, etc. and many have discovered before me...

The primitive low-level tech opens the space to what is possible. Improving low level components opens up a large space of possibility that is often inconceivable at the time the improvement is done. The reverse is disimproving low level components restricts the range of possibilities.

This is why we have seen so much churn in the front end & application libraries. More recent programming languages and front end & application libraries have sought to improve the low level apis to improve the development context of complex software.

A more evolved system (e.g. version 3.0) built with worse components is bound by the lack of quality of it's underlying components. So if version 3.0 Constitution is built with disimprovements in version 2.0 or earlier, it could be rendered worse than a version 1.0 built with quality components & quality first principles.

If the newer versions are better why do they end up being so short-lived?

If we continue the programming language metaphor: the same reason that nobody want to change the Cobol program on the old mainframe but is ready to rewrite more recent projects.

Because the constitution is nothing compared to the intent to follow it.

if fictional explorations of this idea are worth anything, le Guin's Dispossessed are a people whose determination to abide by a set of principles led them to write their constitution not just on paper but directly into the human language faculty

This is a good question that motivated a feature-length article published in The Economist this summer (which I've also referenced elsewhere in this comment section) [1].

The article argues that newer versions of constitutions are often overly lengthy due to attempting to include too many laws within the constitution, which can cause problems. The article argues: "Overly long constitutions often create conflicts between articles that can only be resolved with further tampering. And “if everything is highest law, then nothing is highest law anymore,” points out Dr Versteeg. Omnibus amendments require voters to balance the merits and drawbacks of many changes at once, making it harder to generate consensus."

In brief, the article's view is that the inclusion of too many laws in more recently-written constitutions leads to greater incentives for constitutional rewrites as times and political views change, which is why the article favours shorter constitutions that guarantee fundamental rights, and are thus difficult to rewrite.

[1] (Paywalled, though I've included a summary above): https://www.economist.com/international/2022/08/25/dictators...

Sounds like the constitutional version of popular JavaScript frameworks which quickly outgrow their intended scope and that nobody is ever fully satisfied with

That's a feature, not a bug.

The v5 or v6 would be Canada and South Africa - which have widely praised (by legal scholars) Constitutions.

But neither are really great or terrible. Canada didn’t really change much, and South Africa hasn’t been doing great.

The “West German Basic Law” was widely condemned:

* it was unrealistic to have strong privacy protections for a nation filled with refugee camps and few private homes

* the protections for the family were meaningless when so few nuclear families survived (something like 70% of the country was female)

* the mandate to reunify was unrealistic and possibly undesirable

* there were no provisions for the victims of Nazi Germany

* it favored the establishment of strong, stable leaders - which brought back memories of Hitler

* many of the civil liberties - such as abolishing the death penalty - were just excuses to prevent punishment of war criminals (which was true)

* claiming the lands East of the Oder as part of Germany was unrealistic

Buy it turned out to be an extremely effective Constitution that lead to the transformation of Germany and its eventual reunification (mostly).

As a Canadian I'd be surprised to learn our constitution was considered top notch by legal scholars.

The amendment process is very onerous. 7/10 provinces haven't ever really agreed on the colour of the sky, let alone something as important as new constitutional rules. It took some very special backroom wrangling to pass it in the first place and I don't see a path to amending it during my lifetime. Meech Lake came close and very nearly broke the country.

The notwithstanding clause was necessary to get it passed at all, but really takes some of the teeth out of the charter of rights and freedoms. When parties hold majority control of the House of Commons or a provincial legislature a lot of what keeps their power in check is mostly norms it turns out. One of the few actual laws that would really impede them is the charter, but portions of it can be ignored.

Overall I'm very happy we have the 1982 Constitution Act, but I certainly wouldn't offer it up as a blueprint if someone came asking for assistance in drafting a constitution. The Charter itself as a portion of the larger constitution (minus the notwithstanding clause) is a very special piece of law that deserves some recognition internationally, but as a whole it wasn't even 10 years before the real issues were exposed with the whole document.

My source for Canada and South Africa is Ruth Badger Ginsburg.

She suggested insurrectionists in Egypt emulate the South African and Canadian Constitutions, rather than the US Constitution.

She wasn’t insulting the US Constitution, just emphasizing it’s the product of circumstances that didn’t apply to Egypt.

Seems like the Canadian Constitution is similarly constructed - taking the specific time, place, customs into account.

Not a bad thing at all.

https://www.factcheck.org/2018/12/ruth-bader-ginsburg-taken-...

> Canada and South Africa - which have widely praised (by legal scholars)

> My source for Canada and South Africa is Ruth Badger Ginsburg.

So just the one legal scholar then?

> Ruth Badger Ginsburg

Ruth Badger Ginsburg should be a Supreme Court Justice on a kids show filled with animals who makes landmark decisions the real Ruth Bader Ginsburg would have proud of.

Your own link contains my very point: the Charter of Rights and Freedoms is a modern piece of human rights legislation. RBG specifically calls out the Charter, not the Canadian constitution as a whole.

The Charter is like the US Bill of Rights, a small section of a larger document dealing specifically with civil rights. The rest of the Canadian constitution is a messy bit of parliamentary wrangling from across 2 centuries delegating the country of Canada into existence and separating it from the UK.

"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

So the law can override it as they please? I prefer the US version that says "Congress shall make no law ..."

For a long time now I have tried to sum up the differences between the US and Canada in our founding principals. Canada's is "Peace, Order, and Good Government". Contrast that against the "Life, Liberty, and the Pursuit of Happiness" and the fundamental differences in our approaches to government make a lot more sense.

We're much more like the UK than the US in the function of government and the construction of laws, though Parliamentary Sovereignty is expressly subject to judicial review in Canada, something the UK is going to have to grapple with over the next decade now that they are no longer subject to the European Court of Human Rights.

The government can't just override the charter as they please using the language in the Guarantee. The charter allows for things like hate speech laws, but they have to fall under "reasonable limits", something the Supreme Court of Canada rules on all the time, nearly always in favour of citizens compared to the government. A recent example being medically assist death, where the Supreme Court ruled bans on assisted death violated the Charter.

The US is a free speech extremist country, but since even the US Supreme Court has ruled there are limits on speech (like threats) this isn't a night and day difference between our countries in my view. The US allows far more speech than Canada does, yet we rank higher on the press freedom index.

The thing that really lets the Charter down is section 33, the 'notwithstanding clause'. It allows the federal and provincial governments to pass laws overriding certain rights for a period of 5 years. The charter itself would likely never have come into being without it, but it does take some of the teeth away.

> The US is a free speech extremist country

Jeez, it is hardly extreme. BTW, free speech does not include libel, slander, specific threats, or inciting riots.

> we rank higher on the press freedom index

Canada does? Based on what? Note that no matter how extremely negative the press was about Trump, never once did the government make any legal threats against them about it.

The US has the most expansive free speech laws in the entire world. Perhaps 'extremist' is a bit hyperbolic, but it's certainly true US free speech laws go far beyond any others.

Reporters Without Borders maintains a press freedom index. Their justification is detailed here: https://rsf.org/en/index

Canada ranks 19, the US 42

I’m sorry but this rating is a bit of a joke. It lists UK and France as having much freer press than the US.

I remember an interview with John Carreyrou, the French-American journalist who broke the Theranos scandal.

He said very clearly that if it had happened in France, no press outlet would have covered it.

Theranos had a board of trustees that included Henry Kissinger, a future secretary of defense, etc.

And the publisher of the, WSJ, Rupert Murdoch, had invested hundreds of millions.

I doubt it would have been published in the UK or Germany either.

> something the UK is going to have to grapple with over the next decade now that they are no longer subject to the European Court of Human Rights.

I’m shocked to hear this! I thought the UK was still very much subject to the European Court of Human Rights!

I could easily be mistaken. I think it's currently a weird grey area where the UK government has said they will continue to respect it, but there is nothing binding them to that decision.

This speech is a good reference point. https://www.youtube.com/watch?v=Ggz_gd--UO0

Just because you wrote a good constitution doesn't make the government good. You can put anything you want into a constitution if you don't have the institutions set up right to maintain it.

Further, it's intentional that the federal government at times becomes unable to do it's job in times of intense disagreement. That was an intentional design feature.

It's a version of the English Bill of Rights 1689 so I'm not sure where you get the idea it's version one as the 1689 one wasn't even version one for England.

1689 was only 4 years into Enlightenment, and the collective recognition of "personal rights" that is most-often cited as the Enlightenments greatest achievement also just happens to be a fundamental aspect of 1789 Constitution - and ALL Constitutions moving forward.

THAT'S where the "V.1" honor comes from.

Aside from it being utterly irrelevant when the Enlightenment started as to whether the Bill of Rights 1689 was a precursor to the 1789 ones, how does John Locke fit into that choice of start date for the Enlightenment?

You don’t write low level, close to the hardware software with Python or Java. You use something like C, Rust or assembler. Constitutions are the firmware. Building nations is an old, old craft and the legal instruments used to define have been being written for thousands of years. In many ways our constitution is the Rust of these documents in that it focused on security of structure and by the time it was ratified, security of individual rights over everything else.

Most that seek to change the constitution want to take away rights or add new ones. It is good it is hard to change, especially when many of the change seekers can’t even get the popular support to get a law passed or a veto overridden.

> individual rights over everything else

I used to admire the US constitution. I've grown up now.

Who could possibly be opposed to human rights - i.e. human beings having rights? And indeed, the US constitution does appear to be largely about rights.

Over the years I've increasingly leaned to the view that these rights are mostly a legal fiction, and that the things that are supposedly rights are highly subjective political footballs. Nowadays I think of a constitution as a largely non-political set of rules for how government works; i.e. it's a description of a mechanism, not a description of an outcome.

From that point of view, the US Constitution is an awful constitution.

> Who could possibly be opposed to human rights - i.e. human beings having rights? And indeed, the US constitution does appear to be largely about rights.

What do you mean? US citizens have pretty much the most rights of any people in the world.

Can you list the countries that guarantee freedom of speech, freedom to bear arms, freedom from unreasonable searches and freedom to stay silent (not incriminate yourself)?

(Of course, the implementation of these rights is ... imperfect.)

That’s begging the question. If you define rights specifically by enumerating how they are defined in the bill of rights of course the US comes out on top. That’s before your hedge about implementation.

In practice the US performs rather badly when scores on civil liberties.

Here is one methodology https://knoema.com/atlas/ranks/Civil-liberties-index?mode=am... but you can find similar results across many others.

Just take our prison population per capita if you want a glaring metric on how poorly we do at freedom.

Yeah let's just say that any list that places Canada sixth on a list is very much suspect.

Nothing says "human rights" like criminalising protests, confiscating money, and prohibiting unvaccinated people from leaving the country.

>In practice the US performs rather badly when scores on civil liberties.

Which IMO is mostly a reflection of a country in which a large subset of the electorate do not really believe in human rights beyond the extent of a useful legal fiction to be followed in the default case and quietly ignored in the pursuit of specific outcomes.

If the people had a hardline stance on human rights and civil liberties the government would reflect that.

US citizens do indeed have a constitution that confers lots of rights.

My contention is simply that these rights are legal fictions and political footballs, and should not be in-scope for a constitution. They shouldn't be baked-in; they should be simple legislation.

I mainly don't believe in these "rights". I think people should be treated fairly and equitably; and I think that should be a matter of law. But constitution is about meta-law - how laws are made, not what their effect is.

They're political footballs because people don't want people they don't like or are who are doing things they don't like to have rights and monkeying with definitions is easier than the full frontal assault of amending the constitution.

How many times have you seen people on HN advocating, to much popular support, for infringing upon the 4th amendment for people who are involved in specific types of business or the infringing upon 5th amendment protections for people engaged in certain activities?

I see all the rights under constant attack all the time. By Americans. It's heartbreaking.

The fourth is effectively a law that constrains the authorities from carrying out searches under many circumstances.

The fifth constrains courts from forcing people to testify against themselves.

These rules are often framed as "rights", but they are really restrictions on the power of government officials.

I'm not sure why you have put this in terms of "specific types of business" and "certain activities". What types of business, and what activities, receive special protection under those amendments? What are you getting at?

Fortunately, you still have those rights - whether you recognize them or not, and whether or not the government recognizes them.

They're inherent to being a human being - those "inalienable" rights mentioned in the Declaration of Independence.

The US Constitution did not create those rights, it recognized them.

> those "inalienable" rights mentioned in the Declaration of Independence

/me not subject to USA law.

I've already said that I think "rights" are a fiction; so to me, inalienable rights are an inalienable fiction. Just because they've been written down doesn't make them real.

What are these rights? (I'm not asking for their enumeration; I want to know where they come from, what they're made of, if you like). I did philosophy at University (a long time ago), including a module on political philosophy. I don't know of any basis for the notion of a "right", other than privileges freely granted by others.

So, for example, I have a right to a state pension; I've paid for it all my working life, and I'm over 65. But the government can infringe that supposed right simply by passing a budget that abolishes it. It's a privilege, not a right.

The US constitution claims to protect these "rights" from infringement by legislators, enforced by the Supreme Court. But I have to say, the Supreme Court nowadays looks more like just another legislative body than a superior appeals court.

They come from human nature. The evidence comes from how well a society thrives, or fails to thrive, under particular sets of rights. The US has thrived, so its concept of rights is more accurate than, say, communist rights, under which people do very poorly.

Well, OK. Or maybe they come from garden compost, or the luminiferous aether. You're just making bald assertions.

As far as "communist rights" are concerned, I don't think the idea of rights has much prominence in communist thought.

And your linking of rights (as you conceive of rights) with "thriving" (which you haven't defined, but I assume you mean wealth) is pretty fishy. Many people in the USA are not wealthy at all.

Ya know, the point is lost when one starts to debate the meanings of words. You and I both know what "thriving" means.

I don't know what you mean by thriving, which is why I asked.

And you still aren't addressing my question, which is what are rights, and where do they come from.

The USA — with the 'most rights of any people in the world' — incarcerates the most people, by far, in some of the most inhumane conditions (slavery is explicitly legal in such contexts) among the developed nations.

We're 'free' in an Orwellian sense. Freedom to be educated, have health care regardless of one's employment|wealth, welfare with dignity for those in need — none of these concepts come into consideration into what 'freedom' actually means in practice.

My political leanings started libertarian. Over the years, I have traveled and read, and came to see the US for the farce it is, and encounter the deluded population convinced America is 'the greatest nation ever'. It has potential for sure, but when will we unlock it and truly taste real freedom?

Getting free stuff is a privilege, not a right.

None of the Bill of Rights is guaranteeing free stuff.

Here's how you can tell if a set of rights is more correct or less correct - how well a country organized around those rights thrives, or fails to thrive.

The US has thrived, meaning its definition of rights is reasonably on the mark.

Yeah, well I don't see a country that's thriving, except in terms of wealth (for some). I see a country lurching towards another Civil War.

Anyway, my point was that I don't think these rights exist, and that framing things in terms of rights is arse-over-tit. I'm not interested in arguing whether the US chose the right set of rights; I'm saying I have no idea what a "right" is, other than a privilege granted by law.

> I don't see a country that's thriving

Americans love to wallow in "oh, woe is us!" whereas if one reads history books, the US is in a golden age.

> I'm saying I have no idea what a "right" is, other than a privilege granted by law.

Yep, and Constitutions define these privileges and make them supreme, above other laws.

We have a right to not be murdered. That is a right, not a privilege.

Apparently not; many states have a death penalty (i.e. a withdrawal of that privilege). Prosecution of policemen for murder is rare, and a conviction is even rarer.

And you're still baldly asserting that rights exist, without explaining what rights are or where they come from.

> s I've increasingly leaned to the view that these rights are mostly a legal fiction

Ultimately all constitutions are just ink on paper (or parchment depending on age) and are only as good as the people who govern.

> things that are supposedly rights are highly subjective political footballs.

The fabric of society is a pitch where political football is played. The US Constitution is a product of the times when it was created, and so our pitch was created to balance the power of populous states vs. rural states with proportional representation (House) and fixed representation (Senate) and the electoral college. It took great pains to prevent rule by fiat of the executive because of the lesson from English rule. It's surprising it has held up, but a lot of the pressures that existed when it was created are still present (red state/blue state is really urban/rural) in the US today.

> From that point of view, the US Constitution is an awful constitution.

If a slow, plodding government that is largely effective only when faced with unifying crisis or there is a very high level of consensus is what you want, then the US Constitution works.

This is the kind of nonsense that is produced by the US Constitution:

https://vividmaps.com/wp-content/uploads/2020/06/Texas.jpg

> This is the kind of nonsense that is produced by the US Constitution:

How Texas draws congressional districts is up to the people of the Great State of Texas.

Yes, it's clear to everyone that your voting rights in the USA depend on where you live. That map of Texas is just one particularly egregious example of a gerrymandered district.

I think it's crazy that national (federal) elections are held under rules that vary from state to state; and that a congressional district the shape of a snake is permissible at all, whoever gets to draw the district. It seems obvious to me that national elections should be held under uniform national rules. But it's none of my business; I don't live in the USA, and I'm not from the USA.

The idea that the Constitution is somehow directed by the security of individual rights doesn’t pass the most basic reading or history lesson.

It’s a delineation of governmental responsibilities between the various federal branches and the states. It wasn’t until the Bill of Rights was later ratified that it has anything to say about individual rights other than to deny them.

And yet the BoR was the first set of Amendments as the founders realized the mistake of not including them.

This is either absurd or sorely uninformed. That the Bill of Rights was added later is essentially a procedural technicality.

The (lack of a) Bill of Rights was a major concern when the Constitution was drafted. It was passed with the promise that amending it with a Bill of Rights would be the first priority.

The Constitution was only passed without it so the convention wouldn't keep dragging on.

And because a large portion of the delegates thought that the numeration of the rights was unnecessary as it wasn't the point of a constitution.

I have a friend who, when he was younger, dearly wanted to write kernel drivers in JavaScript.

Java? I wouldn't dream of writing the software equivalent of a modern constitution in Java.

Can you give an example of a version 5 or 6 constitution that is working well in the world?

> The US Constitution was very much a version 1.0 project, written before people even knew political parties would be a design constraint. Constitutions are on like version 5 or 6 now

The mistake here is thinking that "political science" is actually a science, and so being on "version 5 or 6" is actually some kind of objective marker of progress in knowledge. That's a dubious assertion at best.

I don't think these are comparable fields.

How many constitutions have you lived under for a substantial length of time to come to that judgement?

Why does all the "nation building" around the world by the United States never result in a US style constitution, but seemingly inevitably in something closer to the German one?

I mean, Americans always talk about their Constitution's supremacy, but they never want to give it to others (not even to Puerto Rico).

> Why does all the "nation building" around the world by the United States never result in a US style constitution, but seemingly inevitably in something closer to the German one?

Then again, US nation building tends to be an abysmal failure (though, tbf, constitutional structure is not high on the list of defensible reasons for that.)

The nation building after WW2 for Germany & Japan worked out rather well.

Both were by committee and not the US unilaterally, for one.

Well, in Germany we saw what happened when one of the "committee" members decided unilaterally to run East Germany a bit differently. Each of the 4 powers ran their zone as they saw fit.

Besides, what committee ran Japan? McArthur ran it as he saw fit.

> The nation building after WW2 for Germany & Japan worked out rather well.

The US took exquisite care after WWII, to the point of sharply limiting things like denazification, to preserve civic and administrative infrastructure of the relatively advanced states it occupied to avoid having to nation-build in Germany and Japan.

It's out of copyright, so we don't have to give it to anyone. They can just take it.

Usually, countries being "nation-built" aren't in a position to choose anything.

So... you should be happy about the winning power allowing some self determinism. Would you rather it have been forced?

In Germany, laws are copyrighted under a reasonable use with attribution licence.

That's wrong.

The constitutions the US imposed on Germany and Japan we're talking about, which are very different from the US. No unlimited access to firearms and hate speech, for obvious reasons.

The US Constitution is an early prototype for the constitution of a modern republic. Pretty much every other constitution in the world has been written based on US experiences. In almost every case, the newer constitutions have chosen to organize the republic in a fundamentally different way. While you may argue that the values in the US Constitution are the best in the world, it's nowhere near the state of the art in procedural issues.

A key test for a constitution is whether a substantially similar constitution would pass the amendment process today. If it wouldn't, the constitution is obsolete and should be rewritten. If people no longer believe in the spirit of the constitution, they will increasingly try to subvert it. Institutional checks and balances may protect the constitution for a while, but if people don't believe in the constitution, they probably won't believe in the institutions either.

https://youtu.be/Ggz_gd--UO0

Scalia has a great speech on this. Our Constitution has been outdone several times over the centuries, even by Russia. Ours is the best, though, because ours is still standing and the others are not. The bottom line is that the gridlock and glacial pace of progress that others decry is what gives the Constitution its robustness that other lack.

I think the biggest problem with the constitution is that's it's treated with such reverence, and that discussions quickly devolve in to an "argumentum ad constitution" fallacy, rather than actually discussing the meat of the matter.

For the most part I think the constitution is fine, but I also think it's standing in the way of having meaningful debates about the future of the country because half the debates can be quickly shut down with "the constitution".

It has politically appointed judges! I doubt the US constitution is even in the top 50%.

Do you have any reason for that claim ? To an outsider, The US is mostly a supersized version of Canada or Australia. A lot of its current success depends on - its geographic location and strong connection to the early core of Industrialization in NW Europe - WW2 , which was a boon to American industry and simultaneously wrecked large parts of Europe

Now these are all very successful societies relative to most of the world but imo its pretty hard to argue that the US is special.

> but I think she should take a wider view and look at things like how speech and free association would be impacted.

I feel like the first amendment is one of the few bipartisan issues of the constitution, though. The only issue seems to stem from those who misinterpret it as some almighty protection against being abrasive. It's simply meant to say that the government can't punish you for your speech or other association outside of a few cases where you are endangering others. I'm not quite sure if even the most diehard liberal or conservative wants to enable more of that from the government.

there are certainly topics within first amendment rights that can be interpreted, but that's a different matter than addressing the constitutional amendment.

The 1st Amendment has always been widely hated, going back nearly to the very first year, ateast as far back as the Alien and Sedition Acts.

>”The 1st Amendment has always been widely hated, going back nearly to the very first year”

This is the first time I’ve heard that the First Amendment was hated, much less widely hated, and that it has been so widely hated since the founding of the country. What are you basing this off of?

Everyone hates it when speech they don't like is permitted. Politicians hate parodies and getting lampooned by comedians and journalists. Christians hate it when "satanists" mock their religion. And on and on.

> The 1st Amendment has always been widely hated

Not really. Everyone loves what it says, they just all think that what they dislike falls into a hidden “but...” clause.

I agree. Could you imagine if it were easy to amend? There would be a thousand amendments where every party in power amends to undo the last party's amendments.

It's the supreme law of the entire country. Amendments shouldn't come easy.

The issue is more that the lack of amendments proves that we are no longer a "United" States.

Exactly, the article should have arrived at the conclusion that the problem in the US right now is that party politics predominates over the pursuit of the national interest. Instead it arrives at a prescription that could potentially greatly worsen party politics.

No less a jurist than Antonin Scalia (one of the most conservative and intellectually formidable Supreme Court justices, whatever your opinion of his positions) thought that the US Constitution was too hard to amend:

"Scalia said fewer than 2 percent of the population could prevent enactment of a constitutional amendment. “It ought to be hard, but not that hard" https://www.abajournal.com/news/article/how_scalia_and_ginsb...

The bizarre circus of Supreme Court nominees coyly pretending to be apolitical in a plainly partisan nomination process is another indicator that there's something wrong.

The system really should be balanced such that each President gets one nomination per term.

That’s not a terrible idea, but one can imagine both parties would game the change so that it takes effect while they’ve secured a multi-term presidency and a number of justices are retiring.

How do you secure a multiterm presidency?

Was Obama ever at risk of not getting two terms considering the Republican candidates?

It's not guaranteed, but you can usually guess when Presidents are popular enough to stick around for 2 terms.

In hindsight, no, at the time, absolutely. If things had gone a bit differently, he would've failed. I mean the 2012 election was about equivalent to the 2020 election, numbers wise.

It also shouldn’t matter. He wins a second term, he gets a second SC pick. Longest serving justices get retired on a schedule.

Yeah. I agree that amending should be hard, it shouldn’t be subject to a simple 50%+1 vote count. But a supermajority should be enough. What we have is ridiculous. A supermajority of support is nowhere near enough to pass an amendment. It’s leading to the Supreme Court accruing more and more power in what’s becoming an unaccountable superlegislature. Ironically de facto giving the power to amend the Constitution to a *minority* of voters.

Consider that no amendments are currently being held up by a small minority. Congress simply isn't proposing amendments. And most likely amendments on current issues would fail to get even a simple majority of states to ratify.

The hard truth is that most amendments that get discussed today are around issues with no level of national consensus.

Scalia said this a lot. I’ve read a number of interviews with he him, and he brings it up again and again.

Correct. If you make it easier to amend in order to assail your current grievance, it won’t be long before someone else gets into power in order to assail their current grievance, which may be free speech, or worse.

Oh, it's still amended, but by judicial decisions from as few as five justices, rather than by supermajorities of Congress and the states.

That's hyperbolic and is really letting the legislature off the hook for their poor performance. Many of the things that people are upset about, say abortion rights, could have easily been addressed over the past few decades via legislation, but the congress was happy to allow it to rest on a shaky legal foundation via judicial ruling. Even now, they do nothing on the issue. You could pass a federal law saying that an abortion is to be legal in the case of incest. Who is going to oppose that? Rather than do that people want to make it easier to amend the constitution. It's ridiculous and dangerous. If the legislature tries and is denied by the courts then maybe we can talk about a constitutional amendment. But they haven't even tried yet.

I agree with you that Congress shares part of the blame. But there are currently two paths to effectively amend the Constitution, and one of them is waaay easier, so it's not surprising that it has come to this.

I would like to see the U.S. take a page from Canada, which has what is called a "Notwithstanding Clause" in its own constitution:

https://www.thecanadianencyclopedia.ca/en/article/notwithsta...

The clause essentially says that if the judicial branch declares a law unconstitutional, then the legislative branch, with broad support, can issue a temporary override, which lasts for five years and can be renewed.

If the U.S. were to ratify a similar amendment, then there would be two ways to head off or invalidate SCOTUS decisions on constitutional issues. With the assent of 3/4th of states, an amendment can be ratified outright, either to prevent or respond to a court ruling. Alternatively, with the assent of 2/3rds of Congress, a specific Supreme Court decision can be temporarily overruled.

> the rigidity of the Constitution is probably it's greatest strength

Yeah. I’m with you there. It’s that way by design along with things like the presidency not having ultimate power.

The system’s not perfect, but let any modern politician make substantive changes, and I’d bet heavily on the system getting worse.

We should not idolize a past that did not exist. The politicians during the 1780s were not more virtuous, cooperative, or intelligent than the politicians of today.

I tend to agree more with Thomas Jefferson:

"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.—It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal."

https://jeffersonpapers.princeton.edu/selected-documents/tho...

But then you site one of those politicians who wrote actual thoughtful discourse. Is there a single politician in office or who has recently left office in America who has written anything approaching the thoughtfulness of even this short piece?

I have to believe that even if it were true that many or most politicians in 1780 were similar to politicians today on levels that you mention that they still had a serious crop of worthy political intellectuals whereas today we have probably 0.

In what forum today are politicians given an opportunity to speak/write intellectually?

Sadly too, there has been for some time an under current of anti-intellectualism in politics. It is my understanding that Barack Obama, as an example, is highly educated, no doubt could engage in lofty discussions… that would be political suicide.

> In what forum today are politicians given an opportunity to speak/write intellectually?

That quote is from a letter from Jefferson to Madison.

Barack Obama famously wrote a book. A "leader" leads by example. So I have a different take than your "sadly politicians are discouraged from thinking" and it goes like this:

Patronizing and conditioning the political discourse to be at the level of 'high school civics class' is a powerful mechanism for keeping actual thinkers away from politics.

Ron Paul. That is literally it.

the guy whose platform is going back on the gold standard and abolishing embassies to other countries?

i'll give him credit for having a consistant platform and world view, but if he had his way we'd hand control of everything over to corporations -- and that's what his son is doing everything in his power to make happen.

The question wasn't who do you agree with that also writes good and can do other things good too, it was are there any politicians who write with the thoughtfulness approaching Jefferson (who would have agreed on the gold standard btw). Ron's ideas on freedom are excellent, they just aren't tempered with a strong understanding of market power and how it in itself can cause all the abuses the freedom from government he proposes is supposed to stop because there is little attempt to apply said freedoms to private companies who clearly have market power.

As we learned with Trump, there aren't enough limits on the president's power. Especially if the majority in congress just want to keep the bs power coming from their majority - they won't vote against them. The us constitution is vulnerable to the charismatic dictator trope. I wouldn't have believed it before Trump, but a lot of people went along with him because they thought they could stop him later, they thought he wouldn't go that far, they thought other people would stop him. But in our country, we need much greater limits on the president in law and the constitution.

Totally agreed.

The constitution should be hard to amend, its purpose is to give stability. That you disagree with parts of it is one thing, but remember that if it's easy to amend, there's no guaranteed it will be in a way you like.

> I think the rigidity of the Constitution is probably it's greatest strength

It's not just the Constitution, it's the entirety of the American system, which seems designed to use "checks and balances" as veritable roadblocks to slow everything down.

I agree that - in theory - it's great and very smart, because if the government was indeed designed around truths that are self-evident (i.e. inherently "true" and immutable) than everything should settle at the mean of those truths.

The problem is that when the country was being formed, incredible compromises to those self-evident truths were made left, right and center. So we ended up with a country that claimed that all men are created equal but did not actually adhere to this.

Further, the Constitution & Bill of Rights is full of things not related to these core truths. They tend, often, to be functions of their time. Those are the things that should be open for change, and the core truths should be canonized and unbreakable.

"So we ended up with a country that claimed that all men are created equal but did not actually adhere to this."

lol - and yet we did eventually fix it. So much for the unchangeability of US government. So yeah, the rigidity still worked - and continues to work. It's absolutely not a bug, but the most important feature in preserving our republic.

> "So we ended up with a country that claimed that all men are created equal but did not actually adhere to this."

> yet we did eventually fix it. So much for the unchangeability of US government.

As far as I understand, African Americans were still not considered equal in many states over 100 years after the very bloody Civil War to abolish slavery of African Americans. I don't consider this a good example of a highly changeable government. Or am I misunderstanding your point of the US "eventually fixing it"? 100 years is not a trivial amount of time in a country that is only a little over 200 years old.

You're confusing government with citizens. The letter of the law changed but the culture lagged behind.

> You're confusing government with citizens. The letter of the law changed but the culture lagged behind.

I don't they are. The law that abolished slavery changed, but racial segregation was - by definition - inequality. That it was postfixed "but equal" really underscored how hard they tried to dress it up.

It was confirmed - by governments - in a number of cases, Plessy v. Ferguson being the canonical one.

> So much for the unchangeability of US government.

I didn't say it was "unchangeable," and ... well, that's obviously not true.

This is all about the difficulty of changing. My premise is that changes that push closer to the stated core principles of the founders are more likely to happen than others.

I wouldn't say rigidity "works" in this case, as several generations of slaves and women and other minorities might attest. Had we been more open to change in the spirit of the constitution rather than the word, perhaps there'd be less resistance.

Personally I think the constitution should contain only the very basic meta law. What is a law, what do we mean with rights, that the country is divided into states, what congress is etc.. In a language for this forum, something like a lisp kernel or a set of axioms. Abortion, gun rights, and so on are actual legal content and should be strictly separate laws. From the perspective of a software engineer, many legal bodies seem poorly organized (especially in countries with Anglo-Saxon heritage).

Meanwhile, Ireland manages to amend its constitution regularly [1] without exploding.

I _very much disagree_ with the assertion that the US constitution's rigidity is its greatest strength. Similar to taking on too much technical debt, this rigidity makes it impossible to update in response to changing circumstances! I'm not convinced that's ever a good thing; what good reason is there to believe that a constitution conceived over 200 years ago (when the US had roughly 1% the people, ~1/3 the land, legal slavery, an early-industrial / agrarian economy, etc., etc., etc.) is useful today?

Even if we agree that "free speech" and "free association" are reasonable universal rights (and I think we do), what these concepts mean in practice must necessarily evolve as technology gives us new ways of speaking and associating - and we will _always_ have to deal with the difficult question of what to do when someone, through exercising these rights, deprives others (intentionally or unintentionally) of the ability to exercise theirs. This balance necessarily changes as our methods of exercising free speech and association change.

Overall, I'd argue that this rigidity - in the constitution, in the calcified two-party system, in US politics / political systems in general - maybe started out as a unique strength, but is _very much_ a weakness in more complex and rapidly changing times.

[1] https://en.wikipedia.org/wiki/Amendments_to_the_Constitution...

> what good reason is there to believe that a constitution conceived over 200 years ago (when the US had roughly 1% the people, ~1/3 the land, legal slavery, an early-industrial / agrarian economy, etc., etc., etc.) is useful today?

What good reason is there to believe a politician today could do better? Or are you simply trying to use slavery as a cudgel to get people to not argue with you? Politicians today are a ruling class that are worth hundreds times more than the average citizen, receive better benefits like healthcare, can use privileged information for financial gain, are often large land owners, etc. Nothing has changed - at all. If anything, it's probably gotten worse at scale.

> Even if we agree that "free speech" and "free association" are reasonable universal rights (and I think we do), what these concepts mean in practice must necessarily evolve as technology gives us new ways of speaking and associating - and we will _always_ have to deal with the difficult question of what to do when someone, through exercising these rights, deprives others (intentionally or unintentionally) of the ability to exercise theirs. This balance necessarily changes as our methods of exercising free speech and association change.

Political interpretation by the lunatics in a post-mcarthy world are the reason that people think the bill of rights should be flexible. "But the founding fathers never talked about the internet!" is a very pathetic excuse from a very pathetic ruling class that currently controls this country. Any violation of the freedom of speech no matter the medium is a deprivation of rights. We have chosen to interpret it differently. Once you start opening this can of worms up you get all sorts of problems with what is intentionality, what is association, does "free speech" include things I don't like, etc. Right now there are plenty of politicians on every side of the spectrum who'd love to ban everything they don't like.

What I guess I am saying is people are the problem. Greedy, slimy, humans. The world is no more complex at it's core than it was 200 odd years ago. We have made it complicated by spending time finding gotchas instead of treating the constitution as a series of unquestionable meta-laws. Fix the politicians. The document is fine. To use your analogy, allowing simple amendments would be like changing the entire PR review process because a handful of malicious engineers refuse to ever follow the rules. Just fire the engineers!

> Extended the definition of "time of war" to include a war in which the state is not a participant. This was to allow the Government to exercise emergency powers during the Second World War, in which the state was neutral.

Seems like Ireland lasted 2 years before (in practice) removing all constitutional limits on government power forever. Oh sure, it's only "if so resolved by both Houses of the Oireachtas" but that's slim comfort to me.

> Meanwhile, Ireland manages to amend its constitution regularly [1] without exploding.

Ireland has population of ~5 million or about the same as Alabama. It isn't the best example.

Instead of a general critique could you instead offer a specific general improvement?

I don't think it's fair that you were downvoted, at least without that person elaborating on why.

I would tend to agree that larger, more pluralistic societies may have a larger downside to the ability to rapidly changing their laws. As one group gets within power, they have the ability to make lots of changes, only to be upset by the next group that ascends to power. The U.S. has a history of voting out the current party in power and that constant whipsawing of policy might be a recipe for instability.

> The U.S. has a history of voting out the current party in power and that constant whipsawing of policy might be a recipe for instability.

That's largely a US two-party thing. Elsewhere, there's not as much a singular "party in power", and they all need to compromise and tamper their more radical agendas to gain the votes needed.

I don't know if I'd say there's a 'singular party in power' in the US either. It seems pretty common to have, for example, the White House governed by one party and the House by another.

I wonder, too, if it's part of the primary voting process.

We did away with the people in smoke-filled rooms selecting candidates, which seems great. But it also creates more polarized candidates which seems to constantly alienate voters.

> I don't know if I'd say there's a 'singular party in power' in the US either. It seems pretty common to have, for example, the White House governed by one party and the House by another.

For each electable organization, in a two-party system, one of the parties is always in power. The different organizations in the US government (president/senate/house) are more like stages of decisionmaking with intricate interplay. They can be ruled by different parties, but any change of power within one of those organizations is always a full flip-flop within that "stage".

Contrast that to a multi-party system, where such an organization might have power split in ratios like 6:5:3:2. The party with representation of 6 still needs to cooperate with at least two of the others. Even if they lose votes and the 6:5 flips to 4:7, cooperating with the other parties tempers the rule of the new rising party, 4+3 is 7 and all that.

This means the system is much more likely to evolve into the parties making deals with each other and compromising, as opposed to the flip-flop between opinions A and B.

All of these arguments boil down to "we don't have the judges we want in the Supreme Court so we need to change the constitution to get the political decisions we want enacted."

Obviously currently, it's left wing talking points that they want enacted - abortion, gun control, probably free speech limits. I'm sure if/when the court gets packed with Democrat-leaning judges, Republicans will do the reverse.

I'm fine with both sides doing that - it's politics after all - it's when activists try and portray their attemps as non-partisan that it annoys me.

When the author throws in left-wing dog whistles like "There’s a good reason that American constitutional amendments are not decided through national referendums. (Consider, after all, that Brexit was decided by a national popular referendum.)" you can immediately determine their motives.

“Think the rigidity of the Constitution is probably it's greatest strength.”

What if you’re not a liberal but haven’t figured that out yet? Sanctity of the constitution appears to me to be the defining feature of much conservative thinking, or so they say.

> There's a sort of obvious framing to the piece that the Constitution should be more fluid and easy to amend. I think 2022 is a very weird time to prioritize that. I'm not a doomer about US politics, but they're not in a very good state right now. Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted.

The article is just a whine-fest about how "we could ban things I don't like and make law things I do!" Just from the perspective of a historian which doesnt mean they're immune to someones extreme biases.

> It's about how the modern Constitution has become "un-amendable", but it spends a big chunk of the middle of the piece demonstrating the Constitution was never really all that amendable: successful amendments are extraordinarily rare, especially when they're about big-ticket issues. Our biggest structural changes occurred after an enormous civil war.

Indeed, the greatest success of America is the unamenability of the constitution. Yes, in edge cases like slavery you would wish something could be done. However, nothing in said constitution explicitly permit slavery. Interpreted in the most charitable way slavery should've been unconstitutional from the get-go. At any rate, the constitution is about as close as we can come to a "ground truth". Other countries have constitutions that are more amenable. As a result, there's political chaos all the time as every politician does their own thing and undoes other things. Since these are ground truths all other laws can be forged from them. It appears this historian needs to go back to US Government 101. Nothing in the constitution explicitly forbids abortion, immigration, etc. In fact, the constitution should take no position on these issues. They are not "ground truth" rights that we are given for simply existing. If you head down that path, then suddenly we are codifying what will end up looking like the 10 commandments instead of a book of rights. The constitution is not a moral guide. It's a series of meta-laws from which all others can (should) be derived.

Author complains these amendments cannot be passed because of political polarisation. That polarisation is the very reason why those amendments shouldn't pass. You can only change the constitution if there is a consensus, by design. If you want to make a change that half the country is dead against, all the systems of balance of power will work against it (two chambers - one by headcount the other by states, filibuster, presidential veto, high threshold of consensus for changing the constitution), as it should. And the constitution should be the hardest of all paths, since it is senior to all others.

So one way or another, the population will reach its breaking point, and the Constitution will change.

If a population not significantly a majority of the country “reaches a breaking point”, that sounds like it would not go well.

It won’t. This is going to be a decade of strife and instability.

> This is going to be a decade of strife and instability.

“decade” is quite optimistic.

No, more like one of the broken parts will create their own Constitution.

The US tried that already in 1861, it didn't go well. Also you're advocating for the idea that Democracy is a bad idea here.

“Democracy” isn’t a one-dimensional issue. How you make decisions (majority vote) is one dimension. But who makes the decision—what group does the voting and is bound by the results of voting—is another dimension. Many countries balance these issues by having different levels of voting. Distinct communities wishing to govern themselves is a nearly universal phenomenon. My country exists because we didn’t want to be in a body politic with Pakistanis. It was our right to decide we should have our own government where we, and not they, voted on the laws that governed us. Dismissively comparing all such impulses to the Civil War is intellectually lazy.

Self determination is a widely recognized political right. If folks in Alabama don’t want folks in California to have a say in their affairs, they have that right. That must be balanced against other practicalities of course. But letting different groups govern themselves is conceptually part of “democracy” just as much as “one person one vote.”

If the secret of the dimensionality of reality was ever to seep out into the broad memeplex (particularly if the idea caught on with young people), I have a feeling our zoo keepers would have a bit of trouble on their hands.

Just because it was tried and "failed" once before doesn't mean that people don't still believe that it can be tried and made to work the next time.

The concept of a split US is not unattractive to a much larger number of people than you might be willing to give credit. There's also the people that will support a movement not because they fully support it, but mainly just because it's screwing the "system" and watching the chaos.

Back in the mid-90s, I was a video journalist covering the Republic of Texas[0] movement to secede (or in their words to recognize the illegality of Texas being annexed into the Union). It was very interesting how it was successfully progressing through the court system, but then went to crazy town with all of the liens, attempting to print their own money, and the kidnappings. However, there were the typical people denouncing their US citizenship and signing up to join to the Republic of Texas. The thing that surprised me was the governments of other countries signed up in recognition of the RoT as a legit government. I get that individual peoples wanting to see the world burn, but seeing governments sign up for it was what got me.

[0]https://en.wikipedia.org/wiki/Texas_secession_movements#Repu...

Could a state democratically elect to secede from the union? What if a National vote was held and a majority agreed to split up the USA? At what point could we democratically all agree we think the other side is crazy, and ask to peacefully take our ball and go home?

The 10th amendment basically says any power not granted to the federal government and not banned by the Constitution is left to the state. Secession is never mentioned in the Constitution and as such states have every right to vote to leave.

The Supreme Court has previously erroneously ruled that the federal government had the authority to stop it despite that power not having been granted to the federal government.

Texas v. White was a lot more complex than that; Specifically, the court claimed that the Constitution, in its effort to "form a more perfect union," precluded secession. Secession was inherently unconstitutional, because its foundations are that the "more perfect" union is imperfect and not salvageable by any action - short of divorce.

Supreme Court Justice Salmon P. Chase in 1869, Chief Justice at the time:

"When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States."

I understand what the Supreme Court said. There are a few problems with it though.

1. The founders wholly rejected that notion. The Declaration of Independence says

>When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation

>That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

>But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The Colonies were allowed to rid themselves of the British Government but the states aren't allowed to rid themselves of the American government? That makes no sense. The Founding Fathers would have had no issue with secession. Either the American Revolution was illegitimate or the southern one was legitimate. The British Empire made the same argument that the Supreme Court did. The British were wrong just like the Court.

2. If a state cannot leave, then how did the Southern States become military districts? Where in the Constitution does it give the federal government the right to strip states of statehood?

3. There was consent of the states who left to leave. I'm not sure why another state needs to be involved since the 10th amendment doesn't require the consent of other states.

4. If you have a glass of water. You take a sip of water you still have a glass of water. If a state leaves the Union you still have a union. If changing the amount of state destroys the union then I am not sure how adding to the Union does not do the same.

The Supreme Court ruled this way to provide cover for the unconstitutional actions of the federal government. They banned actions that were both allowed and they themselves did. To use a word from the Deceleration of Independence, that is despotism.

>2. If a state cannot leave, then how did the Southern States become military districts? Where in the Constitution does it give the federal government the right to strip states of statehood?

This was a key point that the 90s Republic of Texas movement keyed on, and they would tell anyone within earshot about why all Texas flags in courts are trimmed in gold fringe.

>Could a state democratically elect to secede from the union?

It was supposed to be part of the stipulations Texas had in the agreement to re-join the Union. At least that is part of Texas folklore. However, they were coming at it from a different direction in saying that the annexing was not done legally, so it should just naturally revert back to how it was before the illegal annexing.

We're actually seeing something similar but different currently in how part of Oregon wants to become part of Idaho.

>What if a National vote was held and a majority agreed to split up the USA?

It might not be a national vote, but a civil war ending in a stale mate would essentially do just that. Think Handmaid's Tale's Gilead.

> At what point could we democratically all agree we think the other side is crazy, and ask to peacefully take our ball and go home?

I gladly suggest donating Texas and Florida as the land of the new territory for the "crazy" for which you speak. Anyone not wanting to be part of there rules can move to the other states, and anyone wanting to be part of it can move in. Just let me move out of Texas before the mad rush

On what issues are we going to reach a breaking point that calls for Constitutional change?

I firmly believe it'll be a catalyst that reminds "The People" that they were MEANT to be the fourth check and balance, and that the check and balance system was NOT abstracted for just political institutions to provide leverage against each other's tension.

The founder of the idea of "checks and balances" themselves (Montesquieu, Secondat) said it, the Founding Fathers who were influenced by the two (Madison) wanted to charter it (Federalist n. 10), and Hobbes argued for it in Leviathan. The writing has been on the wall for CENTURIES to include The People as its own entity within the ontological power-struggle of American politics - we were just led to forget our own history.

As a big fan of Jean-Jacques myself I also dig the volonté générale/will of the People, the trouble is that it's quite difficult to say what that "will" really is, first, and second, and just as important, who the People actually is.

To be honest I don't think that in these past ~250 years we've made that big of a progress in answering those two fundamental questions. I mean, the US Constitution starts with the very rousseau-ist "We the People of the United States", but a major part of the population living in said United States wasn't considered (fully) part of said People until the mid-19th century, some say that even now that process is an ongoing project.

The biggest issue in my mind is the potential for the election deniers to gain real power. If elections no longer work as intended, I don’t think anybody can predict what the outcome will be.

If there is a strong enough popular support for taking more extreme actions, then there should be strong enough support to change the constitution the normal way.

For people who want the constitution changed, thats the dilemma they have to deal with. If they don't have enough support to do it the regular way, then maybe the more silly and extreme solutions aren't justified either.

The primary flaw in the constitution is that smaller states have disproportionate power (Senate and Electoral College) and will never give up or dilute this power.

Even worse, equal representation for each state in the Senate is literally the only part of the constitution that cannot be amended.

So even with overwhelming popular support there is an absolute barrier to reform.

On the bright side, senatorial races can't be gerrymandered.

On the less bright side, voter suppression and disenfranchisement can fix them a senate race as well as any other.

Senatorial races were gerrymandered in the 19th century when they were converting territories into states. We are stuck with the results of those political battles forever.

The problem with the electoral college is not one with the constitution. The house of representatives could easily reapportion seats and expand it's size to be more in line with the populations of the states, and these readjust the electoral votes to be closer to the popular vote. But they don't. Why? Perhaps they give up more as individuals than they gain in doing so?

The Senate composition can be amended legally. It does require the consent of any state which would lose proportional representation, placing a strong practical hurdle but there is no absolute legal barring of that amendment.

Exactly! In addition, the 10th amendment should prevent, but has not stopped Congress from passing most of the laws it has passed.

https://constitution.congress.gov/constitution/amendment-10/

The tenth amendment is certainly in effect. It's just that we have an expanded definition of commerce those days.

Not just definition. By any measure, or any definition, we have massively expanded inter-state commerce these days.

Indeed. When the Supreme Court rules that 6 MJ plants, grown and consumed on a homeowner’s property, falls under the power to regulate inter-state commerce, I think some of plot has been lost.

https://en.m.wikipedia.org/wiki/Gonzales_v._Raich

There's a few reasons this broke down...

1. The 17th amendment (1912) - Electing senators by popular vote broke the state representation in the federal government. States no longer had representation to protect their sovereignty.

2. The federal reserve act (1913) - enables government to self-fund by printing money and enforces everyone onto a single, centrally controlled bank.

3. The 16th amendment (1913) - Federal income tax - allows the federal government to directly tax citizens for the first time.

Those three amendments, in effect, decimated the federal system and centralized power. After that, they could pass what ever they wanted.

IMO the internet is re-igniting a public debate and push towards populism -- that and that's why you saw the 2008 rise of Ron Paul, Occupy Wallstreet, Tea Party, Bernie Sandars and now MAGA.

(yes, it was coupled with a financial crisis, but the government response led to push back).

Name the fucking enemy. Starts with a 'C' and ends in 'apitalism'.

Read Richard Wolff's Democracy at Work. This is the way.

I fully agree with lettergram and disagree with naming capitalism as an 'enemy'.

How do you think you're going to reduce poverty and create wealth without capitalism?

the ussr and china both developed from feudalism without capitalism and lifted a huge number of people out of poverty. not advocating their system, (not not-advocating either), but they are counter examples.

hmmm arguably capitalism was still required.

Both the USSR and China both went through (at different times!) great famines due to their collectivization of agriculture. Further, their agricultural practices in general were learned from the capitalist countries and neither produced / produce enough. Both the USSR and China did / currently rely heavily on food imports.

Arguably, they only escaped feudalism because capitalistic countries provided enough cheap food to the global market to transition their economies off of mass labor in fields (the basis of feudalism).

> Both the USSR and China both went through (at different times!) great famines due to their collectivization of agriculture.

didn't the ussr squeeze those farmers so tight to get industral equipment out of the capitalists by trading grain? yes, the capitalists graciously supported the ussr, the cold war was actually a big hug!

because they traded with capitalist nations they couldn't have existed without capitalism. sure, actually that was the theory at the time, that industrialized germany would join them in a mutually beneficial relationship. that didn't happen for some reason.

but what if we flip it? because capitalist nations traded with slave states and feudal nations, they couldn't have existed without slavery and feudalsim. because capitalist nations trade with violently repressive plutocracies, they can't exist without violently repressive plutocracy. seem fair?

how were china and the ussr organized is the actual question.

maybe you assume technological development was caused by capitalism. personally i think that's putting the cart before the horse.

> that didn't happen for some reason.

It was probably because they had to build a wall to keep the citizens of the territory they were occupying from escaping communism.

How anyone in this day can still support such blatantly despotic nations is a mystery to me. Even if you believe capitalist nations are equally authoritarian, which they clearly aren’t, then you’d still have to admit that they at least have the decency to conceal it by not having concentration camps, political and religious persecution, dictators for life or just straight up starving their populace.

I thought the USSR went through famines because of the natural conditions, (drought and unusual coldness).

3 to 5 million Ukrainians starved to death because the USSR deliberately cut off their food supplies in a targeted attempt to kill them.

That’s not entirely true and is mostly propaganda pushed to create a “Ukrainian identity”.

To put it simply, the famine was primarily impacting Cossacks, which were throughout southern Russia at the time. You can look up the famines and see it’s not specifically targeted.

Though I do grant you, collective farming was the issue and it did have an undue impact in Ukraine.

Didn't the Ukrainian famines happened because the URSS was also exporting grain at the same time to capitalist countries, in exchange for industrial development?

China:Four Pests campaign, other madness... total deaths over 40 million.

Russia: purges, torture then murder of 'kulaks', Holodomor, Virgin Lands campaign, etc. Total deaths, estimate at least 30 million; Solzhenitsyn said 66 million.

None of those combined 70 million+ made it out of poverty.

And e.g. eastern Germany build the Berlin wall to hold back the masses of western Germans that also wanted to be lifted out of poverty? /sarcasm off

Or was it the other way around?

> States no longer had representation to protect their sovereignty.

Huh? Previously, state representatives elected senators; after the 17th, the voters did. How does either of these things end "state representation" ? You're insisting that "state representation" can only mean "representation of the people already elected by the voters", which is unjustifiably narrow.

> enforces everyone onto a single, centrally controlled bank.

Do you recall the situation before this?

> allows the federal government to directly tax citizens for the first time.

tricky to fight international wars without this, which obviously you could view as a plus.

State reps have a much more informed and salient interest in maintaining their state’s sovereignty, as their power directly derives from it. Much of what the fœderal government does now to usurp state power is to simply bribe the states to change their policies (e.g. the drinking age, but many such examples). Would state reps willingly select senators who would bribe them to change their own policies?

> State reps have a much more informed and salient interest in maintaining their state’s sovereignty,

Bullshit.

The smaller the democratic unit, the more likely it is to be unduly influenced by local power and wealth. State reps are far more likely to represent the interests of the local power and wealth than they are "their state" (by which I mean "the people of their state")

> Huh? Previously, state representatives elected senators; after the 17th, the voters did. How does either of these things end "state representation" ?

Who’s their boss? At the moment senators answer to the people of a state, previously they answered to state government.

This changes the reasoning of why we have laws at the federal level. The senators representing a state would be fired for giving up sovereignty; not so for those elected via popular vote. Those elected by popular vote are incentivized to give out goodies to the masses.

State legislators could easily fire and switch senators. Public opinion on the senators didn’t matter nearly as much. If a person of a state wanted influence over the senators they had to focus on local elections.

There’s a whole lot of changes, not really sure what’s being missed?

https://wtfhappenedin1971.com/

There's another critical date: 1971. That was the year that Nixon ended the Bretton Woods System. [1] Bretton Woods was a defacto global* monetary system. Other currencies were pegged to the dollar and the dollar was convertible to gold at a fixed rate. This created a sort of soft backing to the dollar.

After it ended the final constraint the 'government printing' (this is not an entirely accurate description of the process, but close enough for practical purposes) infinite money became a viable option; one which they have vigorously pursued since. The above link offers a number of fun graphs demonstrating the changes revolving about that date.

When a federal government can go tens of trillions of dollars in debt, that absolutely destroys any sort of economic normalcy. Because they can offer what's, from their perspective, monopoly money for real services while the rest of the economy is forced to use real money. This applies not only to businesses, but also states - which are constrained by financial realities.

I suspect when this current system we've created blows up, it's going to make 1929 look like a bull market.

[1] - https://en.wikipedia.org/wiki/Bretton_Woods_system

> I suspect when this current system we've created blows up, it's going to make 1929 look like a bull market.

I don't think it will completely blow up, but there will be enough economic pain inflicted such that the ordinary person will be happy to accept a central bank digital currency.

The cogs are already turning: https://www.gov.uk/government/publications/g7-public-policy-...

At this point, I think the US would not accept it.

Half the country wants nothing to do with the federal government. If you visit places like South Carolina, Tennessee, Texas, Florida, Indiana, etc the people there are openly saying “prepare, the government is attacking us”

Driving around the country you’ll see upside down American flags (meaning country in distress), gadsden flags, etc you’re much more likely going to get people to accept ETH then take over the org or something.

> this is not an entirely accurate description of the process

This is an entirely inaccurate description of the process. Only countries were allowed to purchase gold for $35 an ounce, with the assumption that they would also "buy" $35 with an ounce of gold. This would ordinarily be considered a bad deal because the dollar had already drastically inflated since 1934, but Europe and Japan were desperate for liquidity to rebuild from WWII, so they were happy to trade physical gold for what was essentially slips of paper. When the US noticed that they were increasingly trying to trade these slips of paper into gold, the US ended the ability to do so. Saying that the end of Bretton Woods was a bad decision is really just saying that you want the US to instantly become bankrupt.

There is no reason to peg your currency to an arbitrary metal. If the government wanted to stop itself from printing money, it would simply stop printing money. Bretton Woods was actually a weaker protection against "printing money" than say a debt ceiling because Nixon was able to reverse kill Bretton Woods single handedly, whereas raising the debt ceiling requires an act from Congress.

> The federal reserve act (1913) - enables government to self-fund by printing money

The government was always able to do that. Independent central banking made it harder, not easier (that’s why independent central banking helps trust in the currency, because it divorces monetary from fiscal policy, and helping maintain trust in the currency is why you do it.)

Population shifts mean an ever-shrinking minority of the population can block changes to the constitution. It’s barely even double digits at this point.

Constitutional amendments were supposed to be easier than right to rebellion. That’s not really the case any more. At the same time, the supreme court is just ignoring the law, over the objections of 66-75% of the population (depending on the ruling).

These are dark times for US democracy. There’s no evidence things are working as intended.

> These are dark times for US democracy

The US system has little d democratic aspects but it is not a democracy. It was intentionally setup to protect the minority from the majority in critical respects like constitutional amendments. Also, population shifts are ongoing and the coastal blue populations are the most rapidly aging in the country and the increasingly red US born Hispanic populations are the most rapidly growing. The future may contain some surprises.

> population shifts are ongoing and the coastal blue populations are the most rapidly aging in the country

But they also have longer lifespans by a couple of years.

> increasingly red US born Hispanic populations are the most rapidly growing.

A lot of those US born Hispanics are in California and very blue (thanks to Pete Wilson).

Amazing how California shifted from reliable Red (Ronald Reagan era) to reliable blue. What was the factor in this seemingly quick shift - population shifts ???.

https://en.wikipedia.org/wiki/Immigration_Reform_and_Control...

Pete Wilson and Proposition 187 - clearly the GOP still have not learned.

> It was intentionally setup to protect the minority...

...of the opulent, is the quote.

> the coastal blue populations are the most rapidly aging in the country

No, they aren’t. [0]

> the increasingly red US born Hispanic populations are the most rapidly growing.

The Hispanic population isn’t clearly “increasingly red”. [1] It is also growing slower (between the 2010 and 2020 censuses, 23%) than the Asian (35.5%), American Indian (27.1%), and Native Hawaiian or Other Pacific Islander (27.8%) groups, as well as various multiracial groups. [2]

[0] https://www.census.gov/newsroom/press-releases/2022/populati...

[1] https://news.gallup.com/opinion/polling-matters/389093/hispa...

[2] https://www.census.gov/library/stories/2021/08/improved-race...

While you're not wrong, the strongest interpretation of the OP claim is that they meant growing in absolute numbers. By that measure, Hispanic population grew roughly 3x as much as Asian, 10x more than Native American, and 30x more than Pacific Islander (using your census link).

You're own link seems to indicate that Hispanics are shifting to the away from the Democratic party. (In the article, it says they follow a muted version of national trajectory). While that's not the same as saying they are becoming "increasingly red", it is important to note they may be "increasingly less blue."

It’s a democratic republic. I have a distaste for conservative arguments to begin with but the wheedling pedantry of this one they always trout out to ignore the word “democratic” in the description to justify anti democratic measures always manages to annoy me just a little bit harder

Federal rebulic. It seems that Federal word is way too often forgotten. Maybe first amendment to constitution moving forward should be getting rid of it and just moving everything to single level, currently federal, but after not.

You could say federal democratic republic or federated democratic republic if you want, but it being federated does not remove the democracy portion

The Supreme Court is, in no sense of the word, ignoring the law. They are interpreting the laws in ways you disagree with and in ways which have historically not been how it was interpreted by the same court, but this is not what ignoring means.

Further, the objections of the population have nothing to do with the judicial branch and everything to do with the legislative branch. The courts are not and have never been democratically elected entities.

I would add that if you are a fan of courts protecting minority rights not subject to the whims and abuses of majorities, you should be grateful that judges are not democratically elected.

The worse case is majority rights being subject to the whims and abuses of a minority. Protecting minorities shouldn’t mean that this is ok!

P.S. minorities here could mean anything i.e the mega rich, the “legal” cartels, etc.

How is that "worse"?

Abusing any population, is abusing a population. What you just argued is akin to walking into a room full of pregnant high school girls, and declaring one to be the "most" virgin.

Besides, the point of the Constitution, is to make it difficult for such things to happen in one direction or another in the political dimension. Which it does pretty well. If you want it to provide protections in the dimension of private economic activity, you can do that, just make an amendment and build a consensus.

If this new amendment which you draft to ostensibly protect this "majority", can't build the requisite consensus, then not only is it doubtful that it actually protects a majority, but it also shouldn't be an amendment. That's just democracy since the "majority" you claim to be serving doesn't seem to want the amendment.

There are twenty-three states where judges all the way up to the State Supreme Court are elected, rather than being appointed. These include partisan elections, nonpartisan elections, and legislative elections.

https://ballotpedia.org/Judicial_selection_in_the_states

Watching this play out (as a non-US person), there’s very little comfort in the distinction between court ignoring the law and the court interpreting the law in a way that is different to historic precedent. The act of interpretation infers that the court is making some kind of justification – backing these changes up by explaining them. Typically this would happen via written decision or at least by stare decisis.

But then I saw Samuel Alito commenting just today about how the first amendment does not give Americans, and college students specifically, the right to shout fire in a crowded theatre. The fire in a crowded theatre standard was overturned in Brandenburg v. Ohio (1969). So it’s a little odd to hear that the Schenck interpretation from fifty years earlier is back on the menu.

I find myself wondering how that happened. What’s the fine distinction between interpreting the law differently to precedent and ignoring settled law?

> The fire in a crowded theatre standard was overturned…

According to Wikipedia that standard was explicitly upheld as the example of speech that would be prosecuted.

https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

Almost, but not quite. Brandenburg created a softer standard than Schenck. The offending speech would have to incite or produce imminent unlawful conduct. But there's an exception for political speech in Brandenburg, which handed people back their right to protest against (and urge people not to comply with) the draft.

Alito claimed* that the 'fire in a crowded theatre' standard should be applied to today's college campuses, essentially because he has strong views on how free speech should/shouldn't be regulated at college. It seems to me that he's taking issue specifically with the right of students to engage in political speech and protest. The current court seems to have a particular distaste for case law from the civil rights era. I think he's deciding to bring this exact issue up because he wants to signal to any prospective plaintiff what rulings and precedents the court is likely to focus on in a hypothetical case. But he did that by deliberately misapplying the relevance of a widely-known and easily-misunderstood civil rights-era standard. It feels like he's doing that to taunt his political opponents and signal his preference for an earlier legal regime.

My point is that it's fair to question whether the court is actually behaving like a legislature: it's concentrating on case law that specifically affects social policy and it's doing that because it has a majority's muscle. As a foreigner, I can't explain how insane this looks from outside. Judges don't get to just show up to cocktail parties or speeches and single out the precedents they'd prefer to ignore or dispense with. That's a politician's job.

* https://lawandcrime.com/supreme-court/justice-alito-takes-di...

Fire! Fire!! Fire!!! Christopher Hitchens gave an excellent overview of that case: https://www.youtube.com/watch?v=4Z2uzEM0ugY

Their stay in Texas's HB-8 was clearly ignoring the law as it stood. The restrictions in HB-8 were unquestionably unconstitutional at the time it arrived at the supreme court. Later the court changed the interpretation of constitution. The majority could not wait to overturn the law, so they ignored it.

> Constitutional amendments were supposed to be easier than right to rebellion.

I think they were more worried about entire _states_ going into rebellion and not factions of populations spread across them.

> These are dark times for US democracy.

I don't think that's warranted. I would say these are the growing pains of a country now fully entering the age of always available connectivity with a founding document created when horse travel was the only credible way to travel across it.

> There’s no evidence things are working as intended.

You could say this of many things. The highly monopolized state of our media in the face of this new era is definitely a baffling outcome, and I definitely spend a lot of time thinking about the connection between this and the previous statement.

Independent State Legislature theory potentially being concurred with by SC and the ability of state houses obtained through gerrymandering to overturn any election they disagree with says that indeed it IS dark times for US democracy.

At the same time, the supreme court is just ignoring the law, over the objections of 66-75% of the population (depending on the ruling).

SCOTUS can be overruled by the states themselves via amendments. They’re not ignoring law at all.

Tell me how Shelby County vs Holder was not ignoring the law?

Supreme Court rulings are not a popularity contest. It’s intended as an independent (as independent a nominated body can be) that interprets the laws the Congress passes within the confines of the Constitution.

I for one would fear living in a country where the courts were swayed by public sentiment.

It’s hardly an independent body when 67% of members are lifetime political appointees from a party that hasn’t represented a national majority in several decades.

The entire structure of the US government is meant to guard against rule by a “national majority” amongst other things.

It's not "from a party", it's nominated "by the Senate".

For example, Amy Barrett was confirmed by a vote of 55-43, including 3 Democrats.

I'm not sure why you mention "a national majority". It was never a popularity contest. States elect senators, senators confirm Supreme Court justices.

And which office proposes said candidates? And how does that office get elected? It’s not crazy for the OP to mention a national majority

What do you mean office?

The voters elect senators, who nominate candidates and then vote.

The President nominates and the Senate vets/confirms them.

https://www.supremecourt.gov/about/faq_general.aspx

You're right.

The senate judiciary committee will vote, then the candidate is voted on by the entire senate.

Regardless, the confirmation process is conducted by elected representatives. There is no "this party chose them".

A strict reading of the rules says that but the meta behavior of how the political parties interact with those rules means that the scotus judges are de facto chosen by one party or the other.

Then what happens when one party controls the Senate and another the Presidency?

Which has happened quite often?

What used to happen is the President nominated someone qualified and the Senate confirmed them.

Now, it causes a political circus.

I'd disagree there. You've heard of Robert Bork?

Office that is voted in by people who potentially do not represented 49.9% of the people who voted for them.

> On October 26, the Senate confirmed Barrett to the Supreme Court by a vote of 52–48, 30 days after her nomination and 8 days before the 2020 presidential election. *Every Republican senator except Susan Collins voted to confirm her, whereas every member of the Senate Democratic Caucus voted in opposition.* Barrett is the first justice since 1870 to be confirmed without a single vote from the Senate minority party.

https://en.m.wikipedia.org/wiki/Amy_Coney_Barrett

Independent is orthogonal to whether its members match any particular political party provenance.

In fact, the more we demand that it match that profile, the less independent it’s likely to become.

> that hasn’t represented a national majority in several decades

You can't really make that claim, objectively.

US elections aren't decided by national majority, so you can't use them as a measure of national majority.

If the game was different, people would play it differently.

The SCOTUS is "independent" in the sense that it does not have any person or institution they have to answer to, but I'm not sure if that's really all that relevant. The individual members have vastly different views on how to interpret the law, and are clearly put in place for political reasons.

And courts should be "swayed by public sentiment". A judge's job is "to judge", and general societal attitudes play part of that. This is why SCOTUS rulings from 1910 are not the same as today. Otherwise we might as well replace all courts with some AI that would interpret the law to the letter.

> And courts should be "swayed by public sentiment".

That's problematic.

Part of the function of courts and judges is to convince people not to "take the law into their own hands", and mete-out punishment by mob. That incentivizes courts to hand-down more severe sentences, especially in scandalous cases. Another part is to interpret the law fairly (Justice as Fairness), a function that is often at odds with the former function.

I don't think it's at all the business of courts to try to appease the mob; that leads inevitably to trial-by-tabloid, which is no kind of justice.

Well, you turned "general societal attitudes" in to "appease the mob", which is a very different thing.

In 1986 the SCOTUS rules that consensual homosexual sex in private could be banned (Bowers v. Hardwick). Such a ruling would be almost unthinkable today, and was already overturned in 2003 (Lawrence v. Texas). All the arguments used in 1986 and 2003 could still be used today because the constitution hasn't changed, but what is and isn't societally acceptable on this front very much has.

I'm not talking about whatever was in the papers this week, or the opinion polls this year, or whatever Biden or Trump or whomever said last week, I'm talking about broad and general shifts in attitudes that take place over years and decades.

There are very few universal beliefs among humans, as such, any position of power is going to have a political aspect to it. It's unavoidable.

Suffice to say, both parties' presidents have nominated Supreme Court justices that never made it past confirmation. Despite the voting procedure, both parties need to find nominees that are at least palatable to some portion of both parties. Extremes in either direction are generally dropped pretty quickly.

And courts are swayed by public sentiment, but it generally takes a long time for such social sentiment to filter up to the courts. And that's a good thing. The last thing we need is a court that decides cases on the whim's and fancies of the average voter.

The author does not "complain these amendments cannot be passed because of political polarisation [sic]" - she points out that even prior to polarization most amendments couldnt be passed. There are many other important and nuanced points in the article as well, it's neither pro- nor anti- amendment.

https://sapling.ai/usage/polarization-vs-polarisation

IMO "amendments" are made and also "ignored" via an unofficial process.

For example, I can read the second amendment --

> A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

It is clear the national firearms act is outright unconstitutional by any sane reading, yet it was deemed "okay" by SCOTUS and passed by congress. The amendment was ignored for nearly 80 years and finally opinion seems to be shifting.

In a similar vein, the supreme court previously created a problematic "roe v wade" ruling. Regardless where you stand on the issue, SCOTUS effectively legislated that decision into existence. There was never any support in the constitution for their claims (the cut-off date in particular) or any laws passed (hence it was overturned and returned to the states). It's called "legislating from the bench".

In other words, our constitution is interpreted by a court which can just decide it means something that it doesn't.

It seems we can't repeal the amendments, but we sure can ignore them. And we can't create new amendments, but we sure can just implement them (Roe v Wade).

Personally, I'd like to see the constitution fully implemented to the furthest possible extent. We may disagree on issues, but to the point, we can amend them. A full implementation would also create more sovereign states which enable a diversity of ideas and plethora of ways to live.

The Supreme Court didn’t nullify the first clause of the second amendment until 2012. The thought that the right to bear arms was completely unrestricted didn’t exist for the first 200 years of the USA’s existence (including when the people who wrote it were still alive). That the Supreme Court was able to change the meaning of the amendment over time is a clear indication that literal interpretations of it really don’t exist.

^ clearly making my point that cultural opinions dictate more than amendments (particularly ones held by SCOTUS).

Just to be clear, you're incorrect. The bill of rights was extremely clear, the intent was that every citizen should be armed. Recall at the time, the states had to call on citizens to defend their towns, states and country regularly. They didn't have money and needed the citizens to have their own weapons. For both personal and collective defense.

> The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed. - Thomas Jefferson

That said, there has always been a push from various political groups (all the way back to John Adams) who pushed to regulate arms in one-way-or-another. The point is, the reading itself is clear. If you read the various diaries, letters, speeches and publications at the time it paints a picture much like today. There are those who want a disarmed population fearing rebellion and those who demand an armed population. The group that won out on the amendment were clear: "There shall be no law regulating arms and you should be proficient in their use"

There was also almost no standing army at the time so organized militias made a lot more sense

The SC opinion in Heller vs DC makes it clear that the 2nd is a personal right (-and- it was was long before the Declaration of Independence): https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/...

"It was good to have a gun when the clansmen came" -Justice Anton Scalia

The 2nd amendment is still there and it still means the same thing. If it's no longer necessary, repeal it.

> If you want to make a change that half the country is dead against, all the systems of balance of power will work against it (two chambers - one by headcount the other by states, filibuster, presidential veto, high threshold of consensus for changing the constitution), as it should.

which is why prohabition never happened.

Crime virtually disappeared after Prohibition was passed until the apparition of organized crime.

At the time (and still to this day) alcohol and drugs made and destroyed empires. The Dutch Empire was based on Gin. The British Empire on Opium and Rhum. Russia on Vodka. France had Bourbon.

> Crime virtually disappeared after Prohibition was passed until the apparition of organized crime.

Is that a bit like "the sun stopped coming up, until the sun came up the next day" ?

Or that they saw the immediate effect but the consequences after that. Hindsight is 20/20.

You could also rewrite this sentence to say that prohibition created organized crime.

> Crime virtually disappeared after Prohibition was passed until the apparition of organized crime

I have never seen this claim made before and would like some evidence for it.

https://www.vox.com/the-highlight/2019/6/5/18518005/prohibit...

> Crime virtually disappeared after Prohibition was passed until the apparition of organized crime.

I think you mean, that nearly everyone became a criminal overnight when Prohibition was passed, because they didn't just stop drinking.

Prohibition and the temperance movement in general enjoyed wide popular support, and many states had already introduced restrictions on alcohol before the constitution was amended.

Part of the problem in the last half century does appear to be that consensus is itself no longer desirable or possible - the two-party system in the US appears to have an element of adversarial behaviour which is purely for the sake of being against the other guy.

So it's not so much that half the country is dead against particular measures because of their merits or values, but they will be set against change it simply because the other side wants it.

> the two-party system in the US appears to have an element of adversarial behaviour which is purely for the sake of being against the other guy.

Because it serves to maintain a delicate balance: donors fill the coffers of both parties and offer cushy jobs after their term in office, and in return politicians don't pass any legislation that can meaningfully threaten the bottom line of those donors, even though that kind of legislation would actually help the most people and be quite popular. This is why large corporations donate almost equally to both parties, from defense contractors to pharma.

Instead of those meaningful changes which would unite the country, politicians set up culture war issues to set half the country against the other half, because culture war issues are semantic language games where nobody wins and everybody loses. It's bikeshedding writ large.

You confuse consensus with "if we agree with the other guys we'll lose votes" - they aren't the same thing.

You say "should" and I think you're right that that is how the system is interpreted to work and has been for a while. But don't mistake that for a design choice by genius founding fathers OR for a good aspect or a way of achieving good government.

Relying on consensus to get things done AND designing a system to prevent consensus (party system, FPTP etc) is really just a recipe for deadlocked government. The result is the main failing of the US system: things are dictated by the craziest holdout.

I don't think this is a design choice (thinking so would be pretty damning for the founding fathers...). I don't think it serves the US well. I think it is only how the system "should" work in the sense that it is the natural failure mode of the system as written. If a bad, rushed coder fails to put divide by zero protection in, the program "should" crash when someone puts a 0 in. That doesn't mean that isn't a bug to fix though...

"Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree."

Of course this has nothing to do the actual Constitution. It's a statement about each party's (dis)satisfaction with the current success of their party.

The optimist in me wants to believe that even in this polarized culture politicians could compromise and find a middle ground on many issues, conceding to the other side on one issue in order to get something for their side for another issue. That could be done without any changes to the Constitution. But alas, the middle ground has been lost.

> even in this polarized culture politicians could compromise

Not when refusing to compromise is your parties main platform.

> refusing to compromise

Unfortunately the left has won in this regard. The left moves so hard and fast to the left that even the right can no longer "refuse to compromise." If they don't, they are bigots at worst and uncultured, out of touch imbeciles at best.

As somebody not from the US, the mainstream "left" seems very right wing. When compared to the rest of the world, there is no left wing political party in the United States.

Wow, please give some examples.

The US "left wing" party does not (collectively) support:

* nationalized health insurance

* higher upper marginal rate income taxes

* expanded public transportation

* higher corporate taxes

* unions/employee members of corporate boards

* longer parental leave

* more vacation time

These and many other policies are common across other democratic nations' left-ish parties, and are actual policy in many of those nations.

I take it you haven't read the Party Platform, have you?

Not sure that it really matters. As the #1 and #2 priorities of the Democratic Party right are allowing for the unrestricted killing of the unborn and supporting the alphabet-soup of sexual/gender spectrum.

But your #1 and #2 don't appear in most countries non-extremist left parties. Sure many other western democracies allow abortion in some form, but never unrestricted. E.g. in Germany you can abort in the first three month of the pregnancy if you have been to counseling. That makes it impossible to make a decision in a moment that you would regret later. Later abortions are legal only in life threatening situations.

And the support of logically inconsistent and outright vile policies to favor the later letters of the alphabet soup are an American export.

> unrestricted killing of the unborn

Not an accurate description of any democrat AFAIK.

> supporting the alphabet-soup of sexual/gender spectrum

Probably not priority #1 or #2, and if they were, not even an actually bad thing...

Every time... WE KNOW AND NOBODY CARES.

We're talking about the US.

Well, this is an international forum, so I think it's a good idea to remember that many people reading are not from the same country and may have different interpretations of some terms. Also, maybe looking outside and gathering new data once in a while may put the problems you percieve your country to have in broader context, and help you find new solutions that actually work.

> Unfortunately the left has won in this regard.

Republicans have moved further to the right than Democrats have to the left:

* https://www.pewresearch.org/fact-tank/2022/03/10/the-polariz...

I'm not disputing this, but I think there should be a clarification:

By definition, someone who is conservative doesn't need to "move". Conservatism is about _conserving_ and subsequently not changing or moving.

If the conservatives are becoming "more conservative" they are (or at least should be) _not moving_.

> By definition, someone who is conservative doesn't need to "move". Conservatism is about _conserving_ and subsequently not changing or moving.

Your dictionary definition and the practical real world are two different things. Especially when it comes to implementing policy (and the methods used to gain power).

>"Not when refusing to compromise is your parties main platform."

This seems like a scathing indictment, but the point of a political party is to advance an ideological agenda. "Compromise" on bureaucratic issues is essential and acceptable, but you rarely hear about that. There are all sorts of issues that Republicans and Democrats refuse to compromise on - isn't that why people have divided themselves along these lines in the first place?

This likely boils down to how each party feels about the second amendment.

It seems to me the problems with the second amendment are twofold:

1. It was written under the assumption that there would be no standing army, so the citizen militia would be the backbone of the defense of the nation. But that isn’t where we are today, unfortunately.

2. A large part of the US seems to believe that getting rid of guns would make the US less violent. I suspect they are completely wrong about that. Our National myth is about using violence to successfully solve problems, from the original revolution through our successes in several wars.

So we are stuck with an extremely divisive issue which really has no impact on anything real.

> So we are stuck with an extremely divisive issue which really has no impact on anything real.

The 2nd is a canary. Its song is the relationship between security and freedom. Should the canary die, then expect the invocation of the rule of sic temper tyrannis...HHOS.

Let’s just leave it be and keep that impact theoretical.

> It's a statement about each party's (dis)satisfaction with the current success of their party.

This requires clarification. If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress. Since 1992 there have been 8 presidential elections. Republicans only won the popular vote once (2004) but also won the presidency in 2000 and 2016. Similarly, if you look at Congress, especially the Senate, Republicans have outsized power due to the additional votes that those in less populated/rural areas get.

The fact is that our Constitution reduces voting rights for those that live in populous urban areas and gives outsized voting rights to those that live in rural/sparsely populated areas. California has nearly 70 times the number of people as Wyoming, but they both get 2 senators. Even looking at the Electoral College, California only has 18 times as many electors as Wyoming, despite having 70x the people.

This rationale/compromise may have made sense in the late 1800s, but it's difficult for me to see how this is a good thing now. I wonder how many presidential elections we can go where the "winner" receives fewer votes than the "loser" before people seriously question what the purpose of our democracy is.

One other note, the equal-number-of-senators-per-state is the one thing that the Constitution explicitly forbids changing by amendment, the last clause of Article V.

The cap on the size of the House should be lifted, so that an approximately equal number of people are represented by each representative, no matter what state you live in. I don't see the problem in both California and Wyoming getting two senators, since that's (as you mention) precisely the point of the Senate.

It's very deliberately built in to the American political system that the will of the half-plus-one majority does not dictate the direction of the whole country. If anything, the ever-increasing Federalization of laws and policies is the real problem: Californians living like Californians is fine, and Wyomingites living like Wyomingites is also fine, but there is a problem when one tries to make the other live more like them.

Let's have fifty vibrant laboratories of democracy.

> how many presidential elections we can go where the "winner" receives fewer votes than the "loser" before people seriously question what the purpose of our democracy is.

I'm already questioning that myself, considering roughly half of all eligible voters don't even bother to show up for presidential elections -- let alone midterms, which is more like two thirds. If we consider that chunk that does not vote as being OK with the status quo, then I think we have a lot of room left before American democracy is really imperiled.

> It's very deliberately built in to the American political system that the will of the half-plus-one majority does not dictate the direction of the whole country.

The problem that we have is the reverse - a half-minus-one minority can (and occasionally does) dictate the direction of the whole country. Tyranny of the majority is bad, but tyranny of the minority is even worse.

What are some recent examples of minority-backed policies that are controlling the whole country? Things like Dobbs v. Jackson merely moved controversial questions back to the states, which is clearly not at all something that affects the whole country. In what ways are the minority tyrannizing the majority?

> Let's have fifty vibrant laboratories of democracy.

They'll need to stop trading with each other, then.

cf. current CA legislation that will make it hard/impossible for other states to sell pork in CA that was not raised in accordance with CA law.

Now, I happen to agree with the CA legislation, and would love it to cause a change in pork rearing nationwide. But you have to see the writing on the wall: with the level of economic inter-connectedness we have today, either large-market states get to dictate policy, or you need a higher-level body that takes charge of this sort of thing.

Or people just don't trade with California and California doesn't have any pork.

This is not how it normally works, and I suspect you know that.

That's how it works for San Francisco, which is turning out to be not so good for the SF citizens:

https://www.wsj.com/articles/san-francisco-to-consider-toler...

The toleration of intolerance has always been a thorny philosophical problem.

The WSJ article is clearly written as an homage to The Onion.

Finally, San Francisco is not a big enough market to swing anything (or almost anything). California is, particularly if there are at least a few producer states whose sympathies lie in the general direction the CA is trying to push (e.g. with vehicle emissions).

Was the WSJ always this bad or did Rupert Murdoch’s purchase take it in a far right direction?

Oh knock it off. Having a conservative opinion =/= “far right”

You're talking about Americans. The democrats are far right and the republicans are extremely far right. Look at the rest of the world

The opinions of rest of the world are irrelevant to us as regards our political debates. You literally don't matter.

The linked article is from their opinion section which is always hit and miss depending on how you lean politically.

The actual reporting done by WSJ is still top tier imo.

What will most likely happen is that the prices of pork will go up in Cali to accommodate for their laws and stay the same everywhere else.

Regulation simply equals increased prices which is essentially a tax on the middle class and poor.

Whatever was regulated will become a luxury. The rich will have it but the middle class and poor will not.

See car prices, gas prices, food prices, liquor licenses, etc. Anything the government gets it's hand on to regulate increases prices.

The rich don't notice the increased cost of regulation but the middle class and poor suffer.

> What will most likely happen is that the prices of pork will go up in Cali

That assumes:

* either pork production for CA takes place only inside CA or in other states they have two levels of pork production

* if the latter, this further requires that pork producers are happy maintaining two levels of production

* it also requires that no or few other states follow CA lead on requirements

> Regulation simply equals increased prices

Regulation is often (not always, but often) about bring externalities into the actual cost. So the full picture of the result of regulation needs to include:

* what were the externalities now being priced?

* where was the cost of the externalities previously experienced (e.g. poor communities dealing with runoff and waste from pork production)

* what was the full cost of the externalities before regulation bought some of them into the actual price?

* what are the remaining externalities after the regulation

adding additional friction to a process always increases the difficulty of the process and the cost of overcoming that friction is always borne by the consumer.

who bears the cost of not adequately regulating production and disposal processes?

> Or people just don't trade with California and California doesn't have any pork.

That's not how it works in the real world. See how California sets the entire US auto policy.

That literally what the federal government is for. Regulating interstate commerce.

(And common defense)

Clearly Republicans have benefited greatly from the electoral college lately. Whether that is good or bad depends on your political leaning. As a centrist I appreciate that the USA <> California. I don’t know that it is possible to judge this issue in an unbiased way.

Why do you appreciate that the US = the rural parts? That is the current alternative to "California".

Ronald Reagan, patron saint of the right wing, was governor of California.

The US does not equal the rural parts. Did the rural parts of America vote for Biden or support what he is doing?

California from decades ago is hardly comparable to modern day California.

Direct election of the president would not make the USA = California. California would have about 13% of the impact on the presidential election, matching their percentage of the overall population.

> Clearly Republicans have benefited greatly from the electoral college lately. Whether that is good or bad depends on your political leaning.

It actually is possible to have an opinion about the electoral college that is grounded in principal, rather than how your favored political party is benefiting.

> If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress.

True in the very short term, but that's only because neither party really targets the popular vote. Both would realign their platform and bases accordingly, and we'd just end up with a new system with new flaws.

However, if you are correct, that would mean a de facto one-party state. That's downright frightening to me, even if I am a member of that party.

You wouldn't get a one-party state. The US did this before: back in the 1800s, there were 2 parties, the Whigs and the Democratic-Republicans. The Whigs imploded, so the other party broke in 2, yielding the two present-day parties.

If the GOP were to collapse and die out (as it should), the Democratic Party would simply break in 2, creating two new parties: the left-wing/progressive party and the center-right party. The former would champion all kinds of social causes and the latter would be the pro-business party.

>Both would realign their platform and bases accordingly

Don’t threaten me with a good time.

Senators were meant to represent each state's government not the people directly. The Senate, by being once removed from the people, was supposed to take a longer more measured view on issues. The 17th Amendment[1] broke that and made senators elected by the people. The people have the House. The House has also been broken over time. In 1929 the House was capped at 435 members. Since then the number of people that a given representative represents has increased dramatically from 209,447 people in 1910 to 747,184 in 2018.[2]

I agree that the Electoral College needs reform but I am sure that we will not agree on the solution. I think that each state, being an equal member in the union, should have an equal number of electoral votes. Equal votes per state reinforces the purpose of the republic. The republic is supposed to ensure that each state can live the way they want and have military protection. Having one state with more say in the executive is antithetical to a republic. The president is supposed to represent the union, not the people, on the international stage.

Doing away with the Electoral College and going for a direct democracy is a recipe for disaster. Direct democracy does not work on a large scale.

The answer to much of the contention we have today is to return to the limited government that was originally described in the Constitution. Power has become too concentrated in DC and now everybody is playing the game of thrones.

[1] https://constitution.congress.gov/constitution/amendment-17/

[2] https://www.pewresearch.org/fact-tank/2018/05/31/u-s-populat...

literally no one is suggesting a direct democracy. The question is whether the constituents of this country are people or states, and I suppose the answer probably depends on whether you live in a populated or unpopulated state.

The Constitution is an agreement between the states, not individuals. When ratifying the Constitution the people of a state voted to join the union as the unit of a state not as individuals. That makes the states the constituents not the people.

If that was all there is to it, there would have been no House of Representatives. But people who authored the Constitution knew full well that it was not just about the states:

"... if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States? Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?"

It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter."

(https://avalon.law.yale.edu/18th_century/fed45.asp)

And here's a bit more specifically on the nature of the government that they were trying to establish:

"The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national."

(https://avalon.law.yale.edu/18th_century/fed39.asp)

That’s how it was formed yes, but that doesn’t mean we need to keep it.

It’s like saying, “Lead was added to fuel to improve the efficiency of the engines. We can’t change it now!”

1. There should be one person, one vote.

2. People should get to vote on every position (and only those positions) that affect them.

3. Therefore, the role of president, which affects all people in the US, should be voted on as one person, one vote, nation-wide.

(Nobody seems to complain that all governors are voted on by a state-wide popular vote, and not by say the state’s mayors!)

> Doing away with the Electoral College and going for a direct democracy is a recipe for disaster. Direct democracy does not work on a large scale.

This is a talking point that doesn't make any sense. Electing the president and vice president by popular vote is not "direct democracy". It is how virtually every other representative democracy with a presidential system elects their executive leaders.

>It is how virtually every other representative democracy with a presidential system elects their executive leaders.

And which countries are those?

Russia Turkey El Salvador Philippines

Not exactly paragons of democracy.

Face it: the Presidential system itself is a disaster. A Parliamentary system is what you want if you want a democratic country with high-quality governance.

Just please without the weaknesses of the UK system, Boris Johnson, Theresa May Liz Truss, and Rishi Sunak in short order with mostly only input from hardcore party members is terrible form of democracy. The Lords system also is pretty bad as well though of less importance now versus something like US Senate.

https://en.wikipedia.org/wiki/List_of_countries_by_system_of...

The list is far longer than that.

How many of those countries on that list would you put forth as good examples of a stable political system? I counted five, and that’s being fairly generous since two of the five has had some political upheaval in the last 50 years.

I'd say that the election system for most of them inspires more confidence than the US at that point. At least they have the decency to train their vote-rigging poll watchers in private rather than in public.

https://www.cnn.com/2022/09/07/politics/michigan-gop-poll-wo...

There is not a single country on that list that I would prefer to live in over the US..mainly because of political stability. Not saying the US is perfect, but I’d say it’s damn sure more stable than virtually every other country on the list.

Yeah, I just picked some representative examples out of that list. Check out the others: Brazil, Ecuador, Kenya, Liberia, Mexico, Paraguay, Venezuela, Zimbabwe for a few. None of these are what I'd consider stable, prosperous, well-run nations.

France, Portugal, South Korea, Ukraine, Romania, Costa Rica, Taiwan.....it's almost like you're intentionally ignoring all of the presidencies that meet your criteria.

France is on a different list than the one that is anchor linked, as well as the other countries you mentioned other than Costa Rica.

As is Russia, which was an example in the original post I replied to.

None of those (except Costa Rica) are in the list of Presidential systems without a Prime Minister. France is in the list of "semi-presidential" systems. Look at the first list, the one the USA is in.

I also don't consider Costa Rica to be a "prosperous" nation. It's probably the only one in that whole list I'd consider living in besides the US though, because at least it isn't a war-torn or authoritarian hellhole, but it's not exactly an economic power either.

Electing them by popular vote is "direct election". It is true that many countries do that:

https://www.pewresearch.org/fact-tank/2016/11/22/among-democ...

However, many countries also do not do it -- and many countries elect a "president" who does not directly control the executive branch, while indirectly electing a "prime minister" or "chancellor" with such control (as in Austria or France).

In many cases, the prime minister is appointed by the president, and in some cases, they could theoretically appoint almost any adult citizen they want; but in practice, they have to elect someone that the legislature is going to accept and work with; and in many cases, the legislature can bring about a vote of no confidence and cause the government to fall.

There are a lot of details here and it seems like a matrix of four to ten columns might be needed to meaningfully get even a bird's eye view.

Yet most democracies in the world use an electoral college to elect the head of government and it works great. They just call it a parliament.

> Direct democracy does not work on a large scale.

It maybe could with smart use of modern technologies, revocable proxies, and..., but that’s irrelevant because “adopt direct democracy for the US” is not even among the top 10 proposed alternatives to the current setup of the Electoral College.

I'm curious on what the current popular alternatives are. It does seem like most conversation focuses on direct democracy since it's fixated on respecting the popular vote.

> I’m curious on what the current popular alternatives are

Electing the President by national popular vote is by far the most commonly cited alternative.

> It does seem like most conversation focuses on direct democracy

It does not.

> since it’s fixated on respecting the popular vote.

Electing officials by popular vote is representative democracy, not direct democracy. Direct democracy is the citizens making policy decisions by popular vote, without elected officials as intermediaries (e.g., many U.S. states use some form of ballot initiative and/or referendum system, which are – limited forms, since they still have elected legislators do most lawmaking – direct democracy.)

see nationalpopularvote.com

The Articles of Confederation were 1-state-1-vote, and we've seen how that ended. The Founders explicitly rejected that approach when drafting the Constitution, and documented their reasons:

https://avalon.law.yale.edu/18th_century/fed22.asp

"The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale, would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration."

"... To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy."

Note that the highlighted bit is exactly the state of affairs that we have today. Which is to say, EC/Senate today is basically as bad as AoC 1-state-1-vote was back then.

Under the Articles of Confederation all decisions were made by a vote of the states. The Constitution has a very different structure. Most of the power resides in Congress that the people control. The Electoral College is solely selecting the executive not deciding Constitutional questions.

The people are represented by the House and assert their will that way. The apportionment of representatives should be changed so the same number of people are represented by each representative. That alone would alleviate most of the complaints of unequal representation. Being stuck with 435 representatives really skews the power distribution. Returning the Senate to selection by state legislature also solves the complaint of unequal representation in the senate. Representing the people isn't supposed to be the purpose of the senate.

However, for electing an executive, what is wrong with one vote per state? The states are selecting their international representative that Constitutionally has little power.

The mess we have was made incrementally over time. It doesn't make sense to give states one vote in presidential elections without fixing representation of the people and of the state governments. Fixing the house should be the first step so the people feel like they are being represented equally. Then fix the Senate so state governments have a voice. The maybe we address changes to the Electoral College.

> Returning the Senate to selection by state legislature also solves the complaint of unequal representation in the senate.

?? Wyoming would still have 2 senators, just like California. How does that help in any way?

> Representing the people isn't supposed to be the purpose of the senate.

For many of us, that's precisely the problem. The role of the government is the representation of the people, and to the extent that the senate fails to do that, it is a failed part of the government.

The House is the representation of the people. The Senate is supposed to represent each state government. Regardless of population the state governments do not need more representation.

The role of government is to protect states from foreign or domestic invasion and to ensure no government tramples the rights of the people.

But, we are so far past what the government is supposed to do we have people trying to figure out how to get more power for themselves. The Federal government was meant to be inconsequential to your daily life.

What interest does a state government have other than the interests of the people of the state.

Your assertions about the role of the federal government represent one view of that role, and a very historical one at that. That doesn't make it wrong, but it would probably be more useful to say something like "I continue to believe that the view of the some of the framers, and many of the land owning class in the 1700's, that the federal government's role should be very small, continues to be correct even in the 2020s".

More useful because lots of people don't agree with that perspective.

The state government is a consolidated view of the people in that state. That doesn't mean that everybody in the state agrees. But, it does mean that there are some settled issues at the state level. A state's senators should be representing those settled views.

Senators did represent the people but once removed. The people can be swayed by a smooth talker or a pretty face. The state legislature selecting senators ensured that senators represented the collective wishes of the state and reinforced state sovereignty by giving the state government a voice in congress. The Senate acted as a check on the people's whims represented in the House.

Federalists 62, 63, 64, 65, 66, 75, and 76 address the Senate but the reason for the Senate is summarized at https://www.senate.gov/about/origins-foundations/idea-of-the....

Unless a Constitution describing a large government is ratified I will stick to my belief that a large portion of the government is unconstitutional and unnecessary. The Constitution explicitly says that the only powers the federal government has are what is described in the Constitution. Anything beyond that shouldn't exist at the federal level.

A small federal government ensures that what the people of one state want has absolutely zero effect on any other state. It ensures that the people that live closest to each other are deciding the rules they live by. That makes for a happier populous as the people feel they actually have a say in how their lives are governed. A large central government is costly, ineffective and overbearing.

TFA in this case is called "The Unamendable Constitution", which has some bearing on the way that changes in the relationship between the federal government, the states and the constitution have come to pass. I personally would prefer amendments that codified the current role of the federal government (and probably expanded it even further). But no such amendment process is feasibly within reach, and consequently, the evolution of US society has taken place largely outside the constitutional amendment process.

> A small federal government ensures that what the people of one state want has absolutely zero effect on any other state.

This is ridiculous oversimplification. The people of the states move, they travel, they do business, they have family and friends, across state lines. They also dump waste, use water, pollute the air, kill the wildlife .. across state lines. Recently, procurement of health care across state lines has also become a matter of increased necessity, thanks to the decisions of some states.

> A large central government is costly, ineffective and overbearing.

and is also the only thing that can provide an effective counterweight to interstate and transnational corporate power.

At the big picture level, I think you're fundamentally missing that the context that provided most of the reasons for the original existence of states at all has morphed so dramatically that continuing to insist that the only true conception of the USA is as a rather limited aggregation of states is just denying both time and reality.

We had a civil war to deny some of the people in some of the states the opportunity to hold others as slaves and/or leave the union. When the disagreements between states reaches certain levels on some issues, it is not possible for the union to continue unchanged. Those disagreements will lead either to war or dis-union. That was true long before the federal government expanded as it has in the C20, back when we were much closer to the loose aggregation that you seem to prefer.

> A state's senators should be representing those settled views.

why? how is this superior to the alternatives?

I feel like I have repeatedly stated my case on why the Senate representing state governments is superior. So, it is your turn for justification. How is a Senate elected by the people superior to one selected by state governments? How does expanding the Senate to look like the House maintain the bicameral legislature?

I consider the role of any elected form of government to make decisions in accordance with the wishes and choices of the people, subject to the limitations of however those wishes/choices are established.

If we were to ignore the many costs of direct democracy for everything, the best way to fulfill this role would be ... direct democracy (i.e. ask everybody everything all the time).

However, those costs are real, and I consider representative democracy to be an acceptable substitute most of the time. Nevertheless, stacking layers of representative selection on top of themselves reduces the acceptability of this. Choosing the people who will choose the people who will choose the people who will choose the people who will make decisions is, I think, obviously absurd.

So the question is: is there any way in which two layers of representation might be better than one? I can see none. I do not believe that the votes of a state's already elected representatives to pick the people who will in turn represent the state in the US Congress to be superior in any way than having the same people who vote for the state representatives also vote for the US ones.

In general, I view representatives with a wariness roughly inversely proportional to the number of people they represent. My county commissioner? Very low standing, but if they get something good done, great. My state rep? Not a bad person, but vulnerable to local threats. State senator? slightly better, but still very "local". US rep? Now we're talking. US senator? about as good as it gets, in a state-based system.

Why should the votes on the US be apportioned based on boundaries largely chosen by the English aristocracy of the 17th Century?

>”boundaries largely chosen by the English aristocracy of the 17th Century?”

There’s a vast stretch of land past the Mississippi River that the English Aristocracy had no say in the division of past 1776. You could broadly argue that the land West of the original 13 states up to the Mississippi was drawn by the English, but even after independence Americans chose the borders of states like Tennessee, Kentucky, Ohio, and many more.

The Constitution doesn't explicitly forbid changing the Senate composition by amendment. It does require consent from states whose representation would be reduced by such a change.

> One other note, the equal-number-of-senators-per-state is the one thing that the Constitution explicitly forbids changing by amendment, the last clause of Article V.

It doesn't forbid it, it just requires states losing equal representation to consent to the change.

Of course, it also doesn’t limit, say, reducing the powers of the Senate, including transferring them entirely to either the House of Representatives or a new third house of Congress, leaving Senators as purely decorative fixtures.

And you could maybe get away with changing it with two amendments, one that removed the restriction and another that changed the Senate.

> It doesn't forbid it, it just requires states losing equal representation to consent to the change.

Ok, fine, it forbids it in this Universe then.

> If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress.

Not at all. Republicans have won the Congressional popular vote more times than democrats since 1992, and are about to win it again. There has only been one election since 1992 where Republicans won more House seats while losing the Congressional popular vote. They’re 2% ahead in the generic Congressional ballot right now. You can’t blame that on gerrymandering or whatever.

Republicans consistently lose the Presidential popular vote because their incentive is to run the most right-wing person who can win the vote that actually counts, the Electoral College vote. For Congress, republicans have to contest at least some seats in New York and California. But for the Presidency they don’t care if a single person in those states votes for them.

If we used a nationwide popular vote, the GOP would just run someone closer to the median of their House delegation, which consistently does win the popular vote.

To get an idea of what things might look like in a counter-factual world, look at this three-way poll in a Cheney/Trump/Biden matchup: https://www.prnewswire.com/news-releases/the-premise-poll-li.... Biden would get 36%, Cheney 20%, and Trump 45%. Shifting to a popular vote would move the coalitions around a bit: Republicans would have to care a little more about holding onto Romney/Biden suburbs. But it doesn’t mean consistent democratic majorities.

If we used a nationwide popular vote, the GOP would just run someone closer to the median of their House delegation, which consistently does win the popular vote.

Sounds pretty great to me.

Yeah! As long as we have fptp elections there will be two parties each getting about 50% of the vote, because they will evolve to be competitive.

The question is just should that 50% line be about the middle of all citizens, or should that “middle” be randomly skewed towards people who happen to live nearer to farms.

That’s not the only “question.” We’re a federation of 50 sovereign states, not a single state. You can’t just sweep that part under the rug. In general, people tend to get really upset when you act like certain lines on the map just don’t exist.

Hot take: we really should rethink those lines, since they were drawn to balance a power struggle resolved >150 years ago.

California: https://m.youtube.com/watch?v=jsW9MlYu31g

> We’re a federation of 50 sovereign states, not a single state.

Not since Appomattox and the subsequent enactment of the Civil War Amendments — and arguably not even then (see the Supremacy Clause and the Oath of Office Clause in the original Constitution).

State "sovereignty" (a.k.a. "states' rights") is basically a fig leaf that occasionally gets dragged out — often by racists — in pushing back against national standards of decent behavior. Just one example: In 1957, President Eisenhower invoked the Insurrection Act, federalized the Arkansas National Guard, and sent in the 101st Airborne, to enforce compulsory desegregation of Little Rock schools, after local officials and the state's governor cited "states' rights" as a purported justification for flouting the Supreme Court's Brown v. Board of Education ruling. [0] The Supreme Court's subsequent Cooper v. Aaron decision rejecting the Arkansas view was — uniquely in the Court's history — signed, not merely joined, by all nine justices. [1]

[0] https://en.wikipedia.org/wiki/Little_Rock_Nine

[1] https://en.wikipedia.org/wiki/Cooper_v._Aaron

The framers of the constitution did not intend for presidential election by popular vote.

The intention was for state legislatures to nominate electors who would then vote for president.

It wasn't until mid 1800's that states started elections (of electors) by popular vote. Note: still through an elector proxy.

Also this is not a government run by popular vote, it is a mixture of state and population based government and also representation democracy not direct democracy.

In The Federalist Papers, James Madison explained his views on the selection of the president and the Constitution. In Federalist No. 39, Madison argued that the Constitution was designed to be a mixture of state-based and population-based government. Congress would have two houses: the state-based Senate and the population-based House of Representatives. Meanwhile, the president would be elected by a mixture of the two modes.

The fact that people feel that states shouldn't have equal say and equal power is to me a huge breakdown of society.

Having California run the entire country would be a nightmare.

California could not win any popular vote about any matter whatsoever on its own.

The only thing that wins popular votes is ... having a majority of voters voting for it. Doesn't sound so bad does it? At least until you start to introduce the petty tribalism of "I don't want those folks who ain't from round here telling us what we can and can't do".

The real question is: there are obviously different "ideal sized bodies" for a popular vote controlled democracy, depending on the issue at hand. It probably is right that "folks from round here" get to decide a bunch of issues, without having to convince the whole country. And there are issues where you really should only be able to move forward with a popular vote across the whole country. So the question is: what's the right scale/scope of the voting entities for different kinds of issues?

I don't know the right answer, but I'm fairly sure that the states we have right now are not the correct choice for a lot of issues.

Direct democracy is two wolves and a sheep voting on what's for dinner.

tyranny of the masses is equally as bad as tyranny of the one especially considering how tribalistic people are.

That's why the framers of the Constitution decided against what you're proposing.

as to the right size question. there is no right size. it's totally arbitrary. States are what we have and that's fine.

Direct democracy can come with and without a constitution that says the wolves cannot eat the sheep. I like the version with the constitution.

"Tyranny of the masses" is a red-herring. If your constitution (and its enforcement mechanisms) are good, the masses can't do anything to the minorities other than make them irritated (which is a condition we all live in from time to time). And if your constitution isn't good, then your "republic-not-a-democracy" is going to suck for some (or even all) people, too.

I don't agree that there are "no right sizes". I do agree that we don't know what they are yet.

States are not what we have, states are one-sized thing that we have, but we also have villages, towns, cities, counties and even in some cases and for some purposes, regions. And while you may think that its fine, others do not.

> If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress.

They are playing a game to win the electoral college, expect if it were popular vote they would play a different game with different policies

> expect if it were popular vote they would play a different game with different policies

Right, and that different game would look nothing like the current Republican Party, hence why it’s a totally fair statement to say that the Republican Party as we know it today would never stay in power in such a system. They’d have to change, and that change would probably make them look a lot more like Democrats.

Put differently, the current politics and policies of the Republican Party only yield electable candidates in a country that gives outsized power to rural voters.

The answer is, it is a Republic, not a Democracy. It's set up to make it difficult for the majority to trample on the rights of the minority. More colorfully, having two wolves and a sheep vote on what's for dinner.

It's still a good thing.

> It's set up to make it difficult for the majority to trample on the rights of the minority

Two words: Jim Crow

In context, he meant the rights of the minority that was 18th Century slave owners.

Saying slave owners rights were being protected is not exactly a rousing endorsement about the constitution protecting the rights of the minority.

Yeah. The idea that our system somehow successfully prevents a majority from outright extreme oppression of a minority is laughable given our history. This is just a talking point made with nearly zero intellectual honesty to continue to support a system that benefits one political faction.

When they say "trample on the rights of the minority" they mean "enact legislation unpopular among conservatives."

People keep saying this (the republic vs direct democracy part), and it literally doesn't make any sense, to the point that I have difficulty believing people aren't being deliberately obtuse.

Having people directly elect their representatives is still very much a republic and in no definition I've ever seen considered direct democracy. We're talking about people electing their representatives, not their laws.

You need to look up the Dorr rebellion and the Guarantee Clause in the Constitution before you use that line again.

Was Morgan Kousser teaching at Tech when you were there?

> It's set up to make it difficult for the majority to trample on the rights of the minority

And that's why black and white people couldn't intermarry until 1967.

> the equal-number-of-senators-per-state is the one thing that the Constitution explicitly forbids changing by amendment, the last clause of Article V.

Nit: "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

I'm curious what scenarios were discussed in Philadelphia that they thought a state would willingly give up equal suffrage in the Senate?

Senator dies in office and the State chooses to withhold appointing a replacement because there is an impending election.

Does this impact the part of 14th amendment that reduces representation for noncompliance after readmission?

>The fact is that our Constitution reduces voting rights for those that live in populous urban areas and gives outsized voting rights to those that live in rural/sparsely populated area

yup, that was by intention. That's also exactly why the senate was erected; they didn't want smaller states to be ignored by campaigns that could ultimately just focus on enough electoral votes to win the election.

>This rationale/compromise may have made sense in the late 1800s, but it's difficult for me to see how this is a good thing now. I wonder how many presidential elections we can go where the "winner" receives fewer votes than the "loser" before people seriously question what the purpose of our democracy is.

I'm not sure. the exact same gaming would work today if we aboloished the Electoral College tomorrow. The same gaming could happen today; you focus on CA, NY, TX, and FL and you have a large chunk of the population talked to in one swoop. But that leaves 40+ states de-prioritized. figuring out how to solve that without putting the fate of the country in Ohio's hands is a delicate balance to seek.

I'd personal prefer for spillover voting to help ease off the polarization of it all, but that would be an even more uphill battle. Obviously both parties would not want to lose any potential power.

No, it was because the slave states didn't want to lose slavery in a Senate vote.

If you think CA is too populous for it's people deserve an equal vote, CA should be 6 states. But the slavers fought that too (Missouri Compromise).

State boundaries are legal constructs inherited from obsolete aristocracy, not meaningful cultural boundaries.

It makes no sense to solve a hypothetical tyranny of large states by replacing it with an actual tyranny of small states. The Constitution is We the People, not the We the States.

Well said. Thank you. As a disenfranchised Californian I will bang this gavel until I die. The loss of the SALT deduction hit our finances tremendously. 1. Direct impact via higher taxes. 2. People fleeing the state for lower tax states because without the SALT deduction, we have a race to the bottom infrastructure-wise (not that we didn’t already, but the SALT deduction dampened the effect somewhat).

This is the kind of BS law that can only pass when small states get to run roughshod over large ones.

Why should the rest of the country subsidize your state's more burdensome tax regime? Removal of the SALT deduction just brings the federal tax code a bit closer to neutrality. If you choose to live in a place with high taxes, that's fine, but don't expect everyone else to help subsidize it.

Narrow definition of "neutrality".

What you're really going for is that the required service provision level by states should be as low as possible, and if any states wish to exceed that, other states should not need to subsidize it.

Which would perhaps be OK if we had a better democracy, and the decision of a state to provide a very low level of public services truly reflected the desires of its inhabitants. However, all evidence points to the idea that states which actually operate at these lower levels also do their very best to limit the political influence of those would seek higher public service levels.

What you're actually doing is allowing the priviledge of wealth (and power) in some states to percolate up to the federal level to make it harder for other states (and their own) to respond to public desire.

"We the People" of? Of what?

> No, it was because the slave states didn't want to lose slavery in a Senate vote.

Sorry, that is simply not true. Virginia, a slave state, was by far the most populous state at the time the Constitution was adopted.

> Virginia, a slave state, was by far the most populous state at the time the Constitution was adopted.

Only if you count slaves and I don't see why you would in this context.

Hence something called "3/5 compromise" which diluted political power of slave holders and while keeping slaves under their heel.

That is exactly correct.

It was the slave states that wanted slaves fully counted, while the free states didn't want them to count at all.

People who go off about "3/5 of a person" don't realize that doing that made the slave states weaker, not stronger.

> People who go off about "3/5 of a person" don't realize that doing that made the slave states weaker, not stronger.

That would be true only if the slaves could vote. Since they could not it made those states stronger.

No, it increased the political power of slave holders since slaves couldn't vote but were counted as if they could.

Women, children, and slaves were all counted for purposes of representation (slaves at 3/5 --- which made the slave states weaker, not stronger) even though they couldn't vote.

Children can't vote to this day but still count in terms of representation in the House.

No, the Several States are the Sovereigns. They ceded a small amount of authority to the Federal government in a limited Federal Constitution that outlines the powers of the Federal government. See the 10th Amendment.

> No, the Several States are the Sovereigns. They ceded a small amount of authority to the Federal government in a limited Federal Constitution that outlines the powers of the Federal government. See the 10th Amendment.

That ended at Appomattox and with the ensuing Civil War Amendments - see the 14th Amendment.

That’s wildly incorrect.

1) At the time of the founding, the free-state/slave-state dichotomy was almost perfectly orthogonal to the big-state/little-state dichotomy. The plan for proportional representation in both houses was the Virginia Plan.

2) The Missouri Compromise had nothing to do with California being one state. When California was admitted to the union, it had significantly less population than South Dakota and North Dakota did when they were admitted to the union. The subsequent growth of California was an accident of history.

3) State boundaries are absolutely meaningful cultural boundaries. My wife is Oregonian and I’m from Virginia and we’re really different. Even the blue parts of both states are very different.

Also, we have freedom of movement in this country. The precision of the state boundaries doesn’t matter so much given that people can self select to the states that reflect their values.

> No, it was because the slave states didn't want to lose slavery in a Senate vote.

Here in Canada we have the same setup but without the historical baggage of slavery justifying it, so I don't think your reason holds up. There are good reasons for avoiding a tyranny of the majority.

For instance, the less populous states tend to be more rural and make most of your food. The more populous states are more urban and its people largely have little idea how food is made. I'm exaggerating a bit, but maybe give the states that are making your food an equal say in your nation as those that are eating that food.

It's a great thing because where you live matters. I have no idea what's going on in the wilds of Wyoming. Wyomingites do. If Californians were represented by population, these lands would be managed by people who do not live there. That is terrible.

IMO, the main thing wrong with us federalism is that the western states ought to be broken up

> I have no idea what's going on in the wilds of Wyoming. Wyomingites do. If Californians were represented by population, these lands would be managed by people who do not live there.

Given how few people live year-round in Wyoming, but how many Californians own vacation ranches there, that actually might make sense.

People living in a place should have the sole right to determine what happens to that place. Vacation homes don't give you a right to vote, and they shouldn't. This is nuts.

This is a nonsensical idea, at least as stated.

The people who live within 500' of you do not have exclusive control over what happens in that 500' radius circle. Control is ceded to entities like your town, or county, or state, or federal government, in no particular way. The federal government controls, for example, what happens in the air above where you live; your state probably controls the building code for where you live; your town likely controls where you can take a dog for a walk or the intensity of outdoor lighting.

There's no smooth gradient of control dropping off as you get further from where you live. It's messy and it's complicated.

In addition, your stated view of who should have control also acts as a major barrier to people who do not live in a place from ever doing so. I suspect you may have no problem with that, but it's not technically "the American way" (aspirationally, anyway).

I believe one of the tenets of hacker news is responding to the best version of a comment, which I think you failed at in your pedanticism. Of course there are overlapping jurisdictions. However, again, the idea that the coasts should have control over a piece of land hundreds and hundreds of miles away that looks nothing like the coasts is undemocratic. People who inhabit a particular 'country' (used in the non nation state meaning of the term) should be able to vote on it. This is a guiding-principle, not an exact rule with feet measurements, as you've given. This is a guiding American principle in fact... we call it self-determination, and it's written in our declaration of independence.

Perhaps I was a bit concise in my comment, but your attempt at rebuttal against some restrictions that you made up is unnecessary.

The danger with letting people far away from a place hold jurisdiction over that land is that it encourages bad actors. For example, if Wyoming were truly represented proportionally then resource extraction would be freer to damage the Wyoming environment. While true Californians (for example) visit often, there are many parts of the state unseen by tourists. Those who live there may witness environmental abuses or needs particular to that area that we do not. They should forward those to their representatives, who can represent their needs. If we truly represented them proportionally, profit-motivated companies and other bad actors would be freer to mutilate the Wyoming environment as the residents would have even less of a voice.

The problem with places like California and one of the reasons for massive polarization in the state is that Cali's government is too centralized. There are many Wyomings within California (and other large, populated states) that feel unrepresented. Bad actors ruin their environment, and they are powerless to do anything because they have representation proportional to the population.

Land, landscapes, environments, and ecosystems deserve representation as well.

> For example, if Wyoming were truly represented proportionally then resource extraction would be freer to damage the Wyoming environment.

In theory this would appear to be true. But in practice, the opposite seems more common in history. Wyoming's government is more beholden to its rich and powerful interests, and has less power to resist their beck and call. Consequently resource extraction interests are able to behave in ways that a federal government may not (and in many cases, does not) tolerate.

One of the central roles of government is to add balance to the struggle between the interests of the majority and the power of existing wealth. The smaller and more local the government, the less ability it has to add this balance. My county could not possibly effectively taken on a multinational corporation that was or planned to act in ways against our collective interests. In fact, even my state is having problems doing that right now (but it is certainly in a better position than the county).

In a world of gentleman farmers and homesteads, perhaps local governments would be enough to mount a steadfast defence of the interests of the many over those of the few. But we live in a world of gigantic and almost unimaginably powerful corporations, and local (even state) governments are not effective tools when we need to bend their behavior to our will.

The problem of people feeling unrepresented within the government does not go away by subdividing things down to smaller units and thus allowing the State of Jefferson etc. to exist. It might help, somewhat, but it would not eliminate it. When views on, for example, the correct response to a public health emergency (or even the actual existence of a public health emergency), become sufficiently polarized and divergent, different sides in such a scenario are always going to feel unrepresented by whatever action/inaction a government takes.

In addition, it is not clear to me that actively encouraging The Great Sort by creating politically-motivated jurisdictions is a great idea for the long run.

Why is it odd that in a federalized country 1 person is not necessarily 1 vote? Look at the UN general assembly: votes of island nations with few thousand people are worth the same as another nation with 1B people.

If the UN could make decisions with the sorts of impact on ordinary people's lives that the US Senate can, I think we'd see the problems with the UN structure too.

The UN, however, is primarily a venue for the airing of grievances, the distribution of aid, and occasionally the finding of common purpose. It's not much like the US Senate, which consistently blocks legislation supported by a majority of the population.

If you ignore the security council, where a small number of powerful nations rule over everyone else.

> If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress.

The Republicans are competing under the rules that exist - and they’re very, very good at it. Do you think they would blindly wander from defeat to defeat without seriously changing tactics?

Whatever the rules the parties would evolve to each capture 50/50, seems a likely outcome of basic game theory. These people would still be complaining of course, another universal constant.

A note on the electoral college: the size of it is determined by the number of senators and number of representatives per state. The house of representatives can easily change it's size and reapportion seats more fairly, and therefore reapportion electoral college votes more in line with the population. States like California could easily outweigh states like Wyoming in such an endeavor and make it happen, but still they don't. Why? They should want to increase the power of their state in the house, no? Perhaps it has something to do with their power as an individual representative in the house, but whatever the reason, it isn't a problem strictly caused by the constitution, it is a problem that congress refuses to solve that they could very easily.

> This requires clarification. If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress.

That's a meaningless observation. If the rules were different such that the popular vote mattered more, then Republicans would play a different game. Roughly the same equilibrium would be achieved in the end.

Unfortunately, this tendency away from collaboration agreement has been trending this direction for the last hundred or so years.

"But know this, that in the last days critical times hard to deal with will be here...For men will be...not open to any agreement"

Wouldn't hold my breath on this improving. To the contrary ..

It's going to continue to get worse.

Meant to say *collaborative agreement

The US constitution could guarantee proportional representation, which would break the two-party hegemony and make compromise essential to success.

It's not about party success.

Conservative values generally mean trying to keep things the same. A hard to change set of rules supports this. Progressive values generally mean trying to make changes [to improve society]. Being able to change rules supports this.

We should therefore expect conservative people to want a hard to amend constitution and progressive people to want a easy to amend constitution, regardless of whether or not they are in power. I expect this asymmetry to be visible in whether more ammendments are proposed (and ratified under) progressive or conservative regiemes.

> Progressive values generally mean trying to make changes [to improve society].

So I think you are technically correct on the definition of progressive and conservative but I would take issue that the progressive side is always trying to change things to better society. After all prohibition, legalized lobotomies, and eugenics we're a big part of the progressive policy in the late 1800s and early 1900s, of course so we're things like labor laws, income tax and other more ambiguous things like the direct election of senators.

My point is not all movement is forward movement.

The intent of the changes is to better society, even if we don't agree that that was the actual effect.

The intent of conservatism is to conserve positive aspects of society.

The irony? Nowhere, that I'm aware of, is there anything in the founding documents about limiting choice to two parties. We can't keep filtering everything through a binary lens and expect to get anything but binary opposing views.

The tool (i.e. The Constitution) is fine. The problem is at this point it's being used as a hammer and it's a screwdriver. Ya can't blame the tool for those who insist on misusing it.

Democracies that elect powerful presidents directly are usually two party systems. Only the indirect vote of the government through a parliament makes multi party systems more stable.

Nonetheless, there is nothing that stipulates two parties and certainly not the two parties we have currently.

We're too top heavy and we're governed by a cartel. That's not The Constitution's fault.

It really just boils down to how you feel about guns and abortion.

It’s interesting that people want to restrict rights in one area, and expand them in another. The people and parties just disagree on which is which.

> Seventy-two per cent

..is one of those percentages that comes up in survey results so often that I can't help but distrust those results. It feels like something is being gamed to come up with that, and this one managed to get it twice.

Russia and China recently amended their constitution to ensure their respective leaders can stay in power permanently. Having some unchangeable bedrock in a country seems very valuable as we are all vulnerable to tyrants at some point in history.

There's no such thing as an unchangeable government. Even if there was, the US is certainly not one: we have lots of constitutional amendments (including ones that prevent exactly what you just said).

I think I'd take the opposite lesson from these examples: if an individual gets sufficiently powerful, they will change the constitution irrespective of how much you formally considered it an 'unchangeable bedrock'.

Some constitutions, like that of the US, are designed to prevent any individual from amassing such power. The Russian and Chinese constitutions aren't in that same school.

Yeah, but it's a lot harder.

You are factually wrong about Russia. The new constitution removes the loophole used by Putin which restricted presidency of a single person by two consecutive terms. Thus in past he has used Medvedev as a seat warmer for one term, while holding most of the real power. Because it's a new constitution, his old terms got "reset" (it's quite debatable whether such reset is legitimate or not). In theory, after the new two terms he will not be able to get a third one and any future Russian president will be limited by two terms similarly to the US (well, unless of course the constitutions does not get changed again...).

Also, you call the US constitution unchangeable? It's quite laughable. Not only there is a bunch of amendments, but real power structures have changed as well. Starting from the increased size and power of the federal government as opposed to what was envisioned by the Founding Fathers, following by the two terms restriction on presidents, and ending with the creation of the central banking system, which arguably goes against the spirit of the Constitution.

> and ending with the creation of the central banking system, which arguably goes against the spirit of the Constitution.

I see you're not a fan of Alexander Hamilton. The (first) US bank predates the other items in your list, though.

Are you unable to see the difference between the first and second national banks and the Fed behemoth which was created in 1900s and got only fatter (in the sense of power it holds over the national economy) ever since?

When Putin is ineligible for reelection, he’ll be 84 year old.

And? It does not change that the OP is factually wrong. Also, compare the Putin's age with Biden who wants to run for presidency at 82.

Many non-authoritarian countries don’t have term limits for their head of state.

US only got Presidential term limits several decades ago. Simply codifying a tradition after it was challenged. The term limits haven’t always been a net positive.

Something more modern to prevent tyrants could be helpful.

In Russia and China, the constitutional amendment process isn't really democratic, so it's not a fair comparison. In particular, all the various Russian referenda on constitutional amendments since 2000 are about as meaningful as the recent referendums in occupied Ukrainian territories. So it wouldn't matter even if it were as hard or harder to amend as the US constitution - not when the parliament and the regions consistently vote unanimously for anything that Putin puts in front of them.

If you have a broken electoral system (like the US arguably has), and/or can ignore election results (as nearly happened in 2020), then you have no unchangeable bedrock. Don't kid yourself that you're not vulnerable to tyrants.

Constitutions, at the end of the day, are just pieces of paper that can be ignored entirely. The 1977 Soviet Constitution was a landmark in human rights and freedom of expression, but nobody was kidding themselves that this was the reality of Brezhnev's USSR. On the other hand a country like the UK can wing it without a solid constitution at all - just a bedrock of tradition and past legal precedent - yet still remain (despite many glaring faults and recent backsliding) a relatively free country in global and historical terms.

What matters is that the society itself believes in the traditions of democracy, freedom and the rule of law. If that withers and dies, perhaps because people no longer consider these ideals to be as important as their pet ideologies, or because the citizens no longer share a common epistemological reality, or because oligarchs are given free reign to buy politicians, courts and media, then it doesn't really matter any more what your vaunted Constitution says.

I think the single biggest vulnerability of the constitution, which they had no chance of predicting, is mass media and the way it changed the dynamics of politics.

Today it is a mediacracy undergoing a violent phase transition from tv and newspapers traditional media control to social media and search algorithms.

At the root of the problem is that the media is owned by very few oligopolies, and they answer to no one. The potential power from controlling them outshadows their profits.

This. The propaganda of the media, both intentional and accidental, is impacting our Democracy more than I would have thought possible. Being a critical thinker, I made the classic error of assuming that others could not easily be duped, and would actually do their own research on the issues. Boy was I wrong. We are all entitled to our own opinions, but we cannot survive as a Democracy if the citizenry believe they are entitled to their own FACTS. This is truly the challenge of the present, and I feel we are going to shortly lose our Democracy to bad actors who are more than willing to use our own intellectual weaknesses against us.

Democracy is majority rule.

Democracy is nothing about facts or opinions.

You are the one impacting democracy by saying we cannot survive if we keep current democratic rules.

You can have the best argument for improving society by limiting who is allowed to vote, what things you're allowed to vote on, and what facts you are allowed to talk about. It can even be a true argument that would make everyone better off. But if it's less democracy, then it's anti-democratic. If you care about minorities and people generally, that's good, if you care about democracy, that's bad.

The only way you can lose a democracy is by voting to stop voting, or voting to stop other people from voting.

The intelligence of the population has nothing to do with it.

Well, you can also loose a democracy by governing so ineptly that the country falls apart or gets invaded. Also, Plato foresaw democracy descending to the point where people elected a dictator to bring order to the chaos, although that's covered in your post. If the population cannot/will not distinguish reality from what they wish were reality (a disease afflicting both the American left and the right, although in different areas), then the chances of inept leadership or believing the lies of leftist authoritarians or rightist authoritarians increases.

The US is a republic not a democracy. Representation is not proportional.

> The only way you can lose a democracy is by voting to stop voting, or voting to stop other people from voting.

Or for the people in power to ignore the actual vote and do what they want to do anyway. See the large group of election deniers currently in government or running for office.

So the winner in a Democracy or Republic should be the one who most successfully implements weaponized propaganda? The one who fills the airwaves and has the loudest megaphone and the money for the most ad buys? That is emphatically not what the founders of the United States intended, however much they may have initially limited the definition of a citizen. They expected the citizens to make reasoned choices, to be educated, to be well-read and to be rational actors. I highly suggest 'Common Sense' by Tom Paine.

I had a similar realization, and then I realized this is even worse. It's not about being duped. Getting to the truth is a really hard problem.

I also suspect at this point there is fault injection. There are actors spreading false information with the intention of catching others believing it.

I saw some cases where fact checkers had access to suspiciously hard to get information "disproving" a claim someone else picked up. The kind of information you're more likely to know because you created the lie in the first case. In the specific case I could even quantify the probability that they stumbled on that information (it required a choice from thousands of items, with very low probability of being the disproving item), and it had a very low probability.

> I think the single biggest vulnerability of the constitution, which they had no chance of predicting, is mass media and the way it changed the dynamics of politics.

I think these men were more aware of it than possibly anytime in history. One of the biggest reasons that the US was able to become independent was because of the ability of people to spread their ideas through the mass media of newspaper that had recently become something that pretty much anyone could get access to. Or would you argue men who saw the power of the word with Thomas Paine's "Common Sense" or made their arguments to the people through the nationally published "Federalist Papers" really were unaware of the power available when people could freely communicate ideas.

To pretend that mass media is a new phenomenon is to ignore that there have always been massive changes and shifts in society as media has evolved from the printing press to the radio each one marked a period of turbulence, and each time we have adapted and moved forward. To pretend that we are uniquely privileged in all of history as inherently understanding more than our forefathers merely because we can do it faster, is in my mind, the height of arrogance.

No person thinks they are the intellectual superior of Newton at physics just because we have relativity, I don't know many who would argue they'd surpass Turing as a Computer Scientist just because we have structured languages, I think we could assume that there is at least some wisdom in those who revolutionized (no pun intended) their field?

It took me the trauma of 2020 to reconsider my own assumptions about the dynamics of these things.

It's one thing to see newspapers in 1776 and another thing entirely beyond human predictive ability to understand how decades and centuries can lead to inequality levels and power feedback loops with private media ownership.

I don't think I'm smarter, I think this is similar to code in that no matter how talented is the programmer, sometimes you just have to run it to see. It's not about anyone's superiority or foresight, it's about reality surprising even the smartest.

And I'd rather have a mediocre programmer able to dynamically debug than the most of talented programmer on earth writing static untested code.

I'm not on the side of censorship at all. I think free communication of ideas is good.

I'm just not sure if the 1776 revolution could have happened at all after decades of mind numbing propaganda by the British, after they would call their ideas populism daily and train people to associate it with it negatively. After the entire population was immunized against revolutionary ideas as fake news, conspiracy theories, terrorism, danger to pubic safety, misogyny, offensive. These things didn't happen back then. If the British had control over the newspapers and constantly spread propaganda that the cause was lost, how many would volunteer?

If at times the Constitution is not responsive enough, it does have one big benefit: it is almost impossible to change it to do something like, allow a President to serve life tenure, and yet we see a number of places where such constitutional changes were pushed through by those who would be dictators, or sought more powers as executive(Russia's in 2020, China in 2018, Ecuador in 2016, Turkey in 2017, etc.

It does seem silly that someone would advocate making the supreme law of the land easier to change at the same time there is widespread concern about the government becoming more authoritarian, or even tipping into dictatorship. It screams unintended consequences.

However, it's possible to change the people who interpret the constitution to achieve the desired result. (See Poland)

Anyone who advocates for making the constitution more amendable should find a group to sit down and play a game of Nomic[1] until completion. It is the fastest way to internalize the meta-strategy around making it easier or more difficult to make amendments. Is there a disconnect between the current political ruleset[constitution] and the way the political game is played? Yes, but probably not for the reasons you think.

1. https://nomic.fandom.com/wiki/Rules

I consider myself a patriotic American, but I don't know that the government even follows the Constitution in the first place.

NSA has been hoovering up data of innocent Americans, and the IC in general, works with foreign ICs, to target Americans without reasonable cause, just blanket vacuuming.

Much of the govt, including federal, state, and local, has been purchasing private data without a warrant signed by a judge. Or they tap incoming fiber. Am expecting the next shoe to drop around traffic buying, not just location, without a warrant.

Civil forfeiture is rife, violating the 5th and 14th. It is mainly targeting minorities

Likewise, traffic cameras proliferation, mainly targeting minorities.

US Govt, state govts are actively pressuring BigTech to censor, causing them to become state "actors", and "agents of the State" themselves

We're coming off multiple scandals of govt employees criminally pursuing regionally unpopular politicos and their allies, but escaping sanction through regionalized trials

Large govt decrees ended rent collection, closed businesses, and did untold damage to the US. I can understand this, but not the lack of compensation to all the landlords that have been ruined by this.

The problem we have is, the US Constitution isn't being followed in the first place.

Indeed, why bother amending something that isn't being adhered to in the first place.

> The problem we have is, the US Constitution isn't being followed in the first place.

I hear this pretty frequently and often and I wonder, perhaps the constitution is inadequate to the task of governing the US in the 21st century? It seems like no one can agree on what it means - I'm told that we need highly educated legal scholars to properly interpret it before the Supreme Court, but there seems to be less consensus on it than there was in previous centuries.

Yes, it might not need to be re-written so much as it needs to be re-read.

You wrote something much better than I

I wonder if general knowledge of civics and an understanding of the US Constitution has escaped from much of school?

(I can’t claim original authorship on the previous.)

For the high school civics question, I got a lot of exposure to the what, but none of the why really landed for me until much later.

It’s far easier to test that I can regurgitate facts about three branches, a bicameral legislature, the amendment process, the Bill of Rights, 13/14/15, 18/21, but far harder to test my grasp of balancing the will of the slim majority vs the freedom of the slim minority.

Further, middle and high schoolers don’t have fully developed brains nor the life experience of making hard decisions and needing a framework when a far-reaching decision must be made but no decision will leave everyone happy.

I may have learned more about the why of the Constitution in a college philosophy class on liberty and justice than I did in middle/high school civics.

In reality the US Constitution [as practiced] = US Constitution [the words] + Supreme court decisions + Legislature rules + enforcement + de facto practice/assumptions*.

This article focuses just on the first, but we can tackle the others too

Supreme court decisions -> discussions of court reform

Legislature rules -> e.g. discussions of ending filibuster

Enforcement -> Reducing secrecy in government (most places where the US government is just outright ignoring the constitution depends on secrecy)

de facto practice -> all this hand-wringing about "norm breaking" really boils down to some assumptions. We don't have a well developed conversation here, but generally these things should be codified.

"But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it."

-- Lysander Spooner (I think)

Controversial policy cannot and should not become amendments. There is very little that everyone agrees that the government should do and the government is already very powerful. That's why constitutional amendments are so rare.

Absolutely! The constitution by its nature should dictate things that the overwhelming majority of people agree on, not the usual fifty percent plus one person slim margin that a lot of controversial policies end up being.

there are some things that no amount of a majority ever makes moral

You are right, though of course no single person is the authority on what the ultimate moral truth is, so this is perhaps a non-operative statement when it comes to governance.

if you think this, democracy is not the type of government you want to live in.

given how poorly the alternatives have gone though, i think i'll be staying put.

> Absolutely! The constitution by its nature should dictate things that the overwhelming majority of people agree on, not the usual fifty percent plus one person slim margin that a lot of controversial policies end up being.

You'd be surprised with how little people agreed with the Bill of Rights then and even now.

> Controversial policy cannot and should not become amendments.

The problem with making the Constitution hard to amend as the means of preventing that is that it stops new constitutional provisions that are controversial from being added, but it doesn’t prevent old constitutional provisions that are controversial among the people currently governed by them from remaining. This is why Jefferson thought that laws, including constitutions, needed to automatically sunset to prevent the living being ruled from beyond the grave by the dead.

The notion of amending the constitution in response to political dysfunction is a bit paradoxical, because dysfunctional politics are upstream of the amendment process. Dysfunctional politics will likely mean a dysfunctional amendment.

Some thoughts on resolving the paradox:

* If the constitution had been easier to amend in the 90s and 00s, perhaps some wise politicians would've seen whispers of the current dysfunction and passed an amendment to preempt it. Maybe there could be a "department of the future" that's trying to figure out how things could go off the rails and what amendments we could pass in advance to help.

* If amendment was done according to an entirely different process (e.g. sortition https://www.sortitionfoundation.org/case_study_america_in_on... -- essentially a citizen's assembly), that could solve the paradox. Especially if the new process was something slower and somehow less prone to dysfunction. It'd be like an additional check & balance. Sadly, we don't have much experience with sortition or other very different processes, and it seems risky to entrust them with something as important as the constitution. Maybe the rule could simply be that the legislature is required to vote on whether to adopt the changes that come out of the sortition process?

At this point, is the difficulty in amending the Constitution actually a bug? Seeing the polarization, I could see our Founding Fathers deciding that's actually a feature right now because it prevents one side from getting the upper hand and telling the rest to stuff it.

I mostly agree. At this point though, each side tries to circumvent it anyways by at least stretching "interpretations", and the courts tend to allow it.

I'd rather have that than have the constitution easier to amend. Otherwise the whipping back-and-forth on constitutional issues as each party takes power would be extremely destabilizing and legally chaotic. It already is; don't make it worse.

Endlessly bending the structures of law just makes them snap that much harder when they break under the pressure. It's not a good thing.

I don't see how the abuses in the current system make it less chaotic. Regardless of whether I like or hate the specifics of a topic where a legally dubious mechanism was used to accomplish it, I hate the concept that both parties abuse and mis-use the governmental mechanisms to accomplish what they want.

No rational person gives a damn what some guys who died 200 years ago would have thought about our present.

No intelligent person thinks that we got 250 years of relative peace and prosperity by random luck.

I don't consider 1860-1964 to be relatively peaceful.

A war every now and again is relatively peaceful.

> No intelligent person thinks that we got 250 years of relative peace and prosperity by randon luck

Yes, to the extent that the US had more peace and prosperity than, say, European states, most intelligent people with even modest knowledge attribute that not to random chance but to three major factors:

(1) The Pacific Ocean, (2) The Atlantic Ocean, (3) The extremely small number of remotely near-peer powers that have ever existed not separated from the US by (1) or (2).

Which of course explains why the rest of the Americas have also been so peaceful and prosperous.

> Which of course explains why the rest of the Americas have also been so peaceful and prosperous.

The rest of the Americas benefit from (1) and (2), but most other countries have done less well with (3), in large part due to the US, which has had its “peaceful” hands in much of the conflict in the hemisphere.

You're right that the geography of the US confers such an advantage that it seems as though it could have had literally any form of government since its founding and still come out ahead in the end, but I'm not sure if that's actually true. There are plenty of historical examples of resource-rich (in all senses of the word "resource") nations that have failed to prosper and resource-poor nations that thrived despite their challenges. A key difference between those nations is culture and governance.

The point was governmental stability, not protection against invasion. If you look at, say, France, in the same time they've had their revolution, then Napoleon, then back to monarchy, then back and forth with republics and emperors and such. They're now on the fifth version of their republic.

In the same time, the US has had the Civil War, and January 6. That's "relative peace and prosperity".

> The point was governmental stability, not protection against invasion.

The two are related.

> If you look at, say, France, in the same time they've had their revolution

A major factor in which was allegations of the King conspiring with the governments of peer rivals against the interests of his subjects.

> then Napoleon

Who rose to power through (and as the Directory was bankrupted by) the Coalition Wars.

> then back to monarchy,

Imposed by the victors after Napoleon’s Empire was defeated in interstate war.

External security and domestic stability are not unrelated.

Lack of external security can cause domestic government instability. Sure.

Does external security cause domestic government stability?

...the Civil War, and January 6.

the US has been at war in some shape for form for 90% of its history, hard to call that "peaceful". a good chunk of American prosperity you can chalk up to the random luck of geography; abundant natural resources, two oceans separating from rest of the world, lack of many close neighbors, etc.

One hazards to guess that you are not native american...

Why would you reject something based on the age? Either the idea has value or it does not without regard for the age.

I don't reject it based on age. I reject it based on the fact that the people in question were largely slaveowners who led a revolution because the government of Britain was trying to muscle in on their tea smuggling operations, who thought that phlogiston existed, who were deists, who have nothing to teach us today.

In the same vein as GP, the validity of an idea is independent of whether the people who held them owned slaves. If you don't own slaves but think the sun rises from the west, you're still wrong.

Besides, if the only things to be learned from history are those from whom you deem morally clean, I'd wager there's precious little left at all.

The GP wasn’t advocating for their ideals, they were just wondering aloud what their opinions might be, and that’s the thing nobody should care about.

I think the Founding Fathers pictured the government as being democrats and republicans versus problems, not democrats versus republicans.

They didn't even intend for a party system to take hold

Famously the original presidential election rules don't really work in the face of partisanship and President-VP tickets and they quickly were replaced.

> Famously the original presidential election rules don't really work in the face of partisanship and President-VP tickets and they quickly were replaced.

Arguably, the main problem with the original rules was bullet voting in the electoral college; if they voted with preference ballots with winner elimination, instead of bullet ballots, having the second place be the VP would work well, and produce less incumbent protection even with an equally strong party system than the actual replacement system of separate election, which produced President-VP tickets.

The 12th Amendment enshrined tickets, certainly, but they were already present by the election of 1800.

I remember reading about "factions" in the Federalist papers and I have a feeling that the Founding Fathers knew such partisanship was bound to arise. And indeed, it arose very early during George Washington's presidency. I don't think the development of political parties would have caught them by surprise, especially because many of them wound up joining them as time went on.

Federalist 10 describes factions as the nature of man, explains why they don't belong in government, and describes how the Constitution limits the sway of factions. But, the Founding Fathers never envisioned it would be possible to coordinated across a continent in real time. Rapid communication allows factions/parties to have continental spread.

https://guides.loc.gov/federalist-papers/text-1-10#s-lg-box-...

> Federalist 10 describes factions as the nature of man, explains why they don't belong in government, and describes how the Constitution limits the sway of factions.

Unfortunately, its claims in this regard were proven false not much more than a decade after it was published.

*> the Founding Fathers never envisioned it would be possible to coordinated across a continent in real time.

This would be a valid argument if factions did not become central to US politics until rapid communication became available. But that's not the case. Factions were already central to US politics by 1800, when the fastest mode of communication was horseback.

The Founding Fathers wrote a republican constitution and knew for a fact that as a direct consequence of the republican structure that there would be factions. That was the point of Ben Franklin's quote:

  a republic, if you can keep it

Or constant flip-flopping.

That said, I do feel like we have hugely eroded its protections. It's not worth quite as much when it's just blatantly ignored (Andrew Jackson) or absurdly interpreted (civil asset forfeiture[0]).

0: https://scholarlycommons.law.northwestern.edu/cgi/viewconten... (1997)

It is a feature. The Constitution defines a series of feedback loops with different time-constants:

House: 2 yr

President: 4 yr

Senate: 6 yr

President-term-limit: 8 yr

Supreme-Court justice: ~16 years (per Google for average term)

Constitutional Amendment: Hard. ~13.5 years between updates, potentially infinite duration. (231 years since Bill of Rights was added, 17 amendments since then)

Each of these allows for differing response-times to a changing world. If you're a control-theory engineer, you might view Congress and the President as a PID loop, where the President is P, the House is D, and the Senate is I.

The goal of the Constitution is to ascertain what the people want, in aggregate. This series of cascaded loops helps to serve that purpose.

Some difficulty is not a bug, but the current amount of difficulty was probably not intended.

Most of the drafters understood that it was important for a government's founding document to strike a balance between two unsustainable positions: immutability (leading to a sort of tyranny of the old and dead) and excessive mutability (leading to short-term thinking and political instability). Our current approach to amending the constitution has favored the former position, to poor effect.

How?

How what?

When one side wants things to change and the other side wants things to "stay the same" (in order to deconstruct them), the current state of affairs is one side having the upper hand.

The US founding fathers were so worried about a tyranny of the majority they built a system where a tyranny of the minority was likely to come to pass.

> When one side wants things to change and the other side wants things to "stay the same"

You've misdescribed the sides. Most of the time in the US, one side wants to impose something on everyone and the other side doesn't want to be imposed on. Maybe the root of the problem is the idea that the only way to have "change" is to impose your views on everyone.

Yes, because it leaves constitutional meaning up, not up to the people, but up to the whims of the supreme court.

The easiest way to amend the constitution is to hold or pack the supreme court. That is dysfunctional. An easier to amend constitution, that better reflected the people's will, would likely reduce political polarization, as it would be possible to actually pass national laws that have 60 or 70% support.

The Constitution does not represent the People's will; it represents the States' will. Amendments are not passed by popular vote. The Constitution is not a human rights document; it is a document created specifically to allow the States to agree on certain baseline rights and expectations.

Yes, this is a bug, not a feature. A government that privileges certain arbitrary subdivisions over the citizenry is not great, and there's a reason that while many parts of the US constitution have been copied, that one hasn't.

Boundaries, states in this case, but it's a general principal, are exactly what give the people within them self-determination.

Only if those boundaries are individually self-governing!

And they are not, since California and New York cannot outlaw handguns due to the influence of Wyoming and Idaho.

And as soon as you say "well the voters in Wyoming and Idaho deserve...", you've dropped any pretense of the internal boundaries mattering, because we're now just talking about federal representation, where those citizens have disproportionately large representation.

They cant outlaw guns (lets not pretend) because humans have the inalienable right to -defend- themselves. And that includes against a tyrannical government. The United States would not exist otherwise[1].

[1] https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/...

You cant outlaw lathes and mills. Now guns are now printable. That train has left. DRM lost.

Given the way you're intentionally missing the point, I think it's clear my argument hit the mark. And jutt to further clarify, it's completely possible to ban things that someone can manufacture. I'm not sure what makes you think otherwise.

California and New York cannot ban hand guns because of the incorporation of the Bill of Rights. Prior to this concept the Bill of Rights applied only to the federal government. The States were free to ban guns if they wanted.

Correct, a (functional) amendment to the constitution made by the supreme court and unable to be overturned except by that body, due to the inability to amend our constitution. This is decidedly not an argument against anything I've said.

I wasn't making an argument against the point you were trying to convey, but the argument you were using. It is not Wyoming and Idaho's fault, but an erroneous understanding of the 14th amendment that caused California to lose the right to ban guns.

If the incorporation of the bill of Rights never happened California could ban not just handguns but every gun they wanted.

I agree that Wyoming, Idaho and like minded states are stopping an amendment repealing the 2nd amendment. The easier way to get rid of guns in California is to push for no incorporation of the 2nd amendment. The Supreme Court could do it if they wanted. You literally just need to convince 5 people.

I mean I think that incorporation has a clearer constitutional basis than heller, but I see your point.

It also doesn't help that the constitution is unpleasantly vague in many places. It is a legal document, the chief legal document in fact, and yet we are forced to define legality based not so much on the text but on the vibe of the text (and yes this is true even if you are a textualist!), because the text isn't precise about what it means.

>I mean I think that incorporation has a clearer constitutional basis than heller, but I see your point

I hold the opposite view as you can probably tell.

>It also doesn't help that the constitution is unpleasantly vague in many places.

I think the problem is people have a misconstrued understanding of the role of the federal government based on erroneous court decisions.

We are now in a situation where people think the federal government can do anything except what is banned in the Constitution. This is one of the reasons why some of the founders were opposed to the Bill of Rights. They knew this exact situation would happen. Instead of thinking the government is allowed to do what is granted to them (enumerated powers) people now think the government can do anything that is not banned.

The federal government is allowed to do 27 things and nothing more. The courts have consistently allowed the government to do more and more and interpreted things exactly opposite of what it says (Wickard v Filburn for example).

Another issue is some people look at other countries and assume the US federal government should be able to act in the same way. We see this all the time. We have people saying the US is the only developed country without X. The problem is X isn't supposed to be done by the federal government, you have to look at what the States do.

Sorry about rambling. Not sure if I fully responded to you.

It absolutely is a feature. The government already has tons of power and there are few policies that everyone agrees on. No wonder we dont have new amendments.

The constitution is perfectly easy to amend when we have consensus. The problem is achieving consensus.

I don’t think making the constitution easier to amend would make it any easier to achieve national consensus.

The Constitution requires 3/4 of state legislatures to ratify any amendment. Given the extreme disparities between states in terms of population, it's entirely possible for something to be supported by >80% of the people - I'd say that reasonably qualifies as "consensus" - but still unable to be ratified.

Conversely, it's possible for the small states representing less than 25% of the overall population to band together and ratify any constitutional amendment - and it would be binding on the rest of the country.

It really is a broken system through and through.

>it's possible for the small states representing less than 25% of the overall population to band together and ratify any constitutional amendment

I took the 2020 Census population figures from:

https://en.wikipedia.org/wiki/List_of_U.S._states_and_territ...

...and came up with the 38 smallest states (75% of 50) had a total population of 134 million or 40.5% of the U.S. population; the largest 12 states had a combined population of 197 million (59.5% of the U.S. population).

I'm accounting for indirection via state legislatures, since it's the latter who ratify by simple majority - so the MPs in the state legislature who vote to ratify don't necessarily represent all the residents of that state (in fact, given the quirks of FPTP and tricks like gerrymandering, things can be ratified against popular majority in the state).

All residents of the state are represented by their representatives even if they don't support and didn't vote for the representative.

Suppose they did support and voted for their representative, and that representative voted against ratification, but the legislature still voted to ratify. Does the ratification then meaningfully represent all residents of the state?

I don't think so, but I can see how others might take a different perspective here. It doesn't really matter to the point I was originally making, though - if 40% of the population can rewrite the constitution over the heads of the other 60%, it's still badly broken.

>Suppose they did support and voted for their representative, and that representative voted against ratification, but the legislature still voted to ratify. Does the ratification then meaningfully represent all residents of the state?

Yes. That is the way some representative democracies work. Your representative may not have voted for something that passed. Your representative may not have been voted for by you.

I understand wanting changes to it, but you still are properly and meaningfully represented in my view.

>I don't think so, but I can see how others might take a different perspective here. It doesn't really matter to the point I was originally making, though - if 40% of the population can rewrite the constitution over the heads of the other 60%, it's still badly broken.

It is only broken if you think people are supposed to be making the decisions. In the past some state legislatures would vote for the president not the people. Prior to the 17th amendment the states were represented by the senators. The states are the ones who decided many of these things, not the people. There has been a shift in the US pushing more and more for the people to directly have more power, but that isn't the way the system was set up. It isn't broken when you think about it from that perspective. The people don't change the constitution, the states do. The states are the ones who formed the Union so they are the ones who can change it. The US is quite unique in that perspective.

There will be no amendment to ratify though without 3/4ths majority of the house and the senate – easily accointing for a majority of the US population – or a constitutional convention, also something not at all likely to occur without not just popular support but long standing grievances of the populace with the federal government.

The constitutional convention requires 2/3 of the state legislatures to approve it to convene, so popular support is no more relevant to it than it is to ratification. If you have enough legislatures willing to ratify some amendment, the same legislatures can also submit it for ratification.

I'm aware, I don't believe that the populations of any combination of 2/3rds of the states constitute a minority, and it's safe to assume that significant populations from the 1/3rd of stares would support whatever measure a convention was attempting to address whatever problem.

And when we don't have consensus, is it really a bug if we can't amend the constitution? One could argue that it's correct behavior.

Well said. The issue (as noted in the article) is party politics. The solution is not to make it easier for whatever party happens to be in power to wield it like a bludgeon, or to throw away the concept of representative democracy and run the government like a twitter poll. The idea that we should keep the parties and the tribalism, but ditch the requirement that we learn how to compromise with each other, is completely wrong.

> The problem is achieving consensus.

This "problem" is inherent; with time you run out of consensuses as they are ratified. What's left are all the things for which there is no consensus.

There are a lot of comments here about how the founding fathers intended this or that as if they were a unified group of people with a single vision. This is far from the truth. The original attempt at a governing document wasn’t the constitution, it was the articles of confederation, which failed. The constitution was a compromise. Some wanted a king, some wanted direct democracy and there were people in every shade in the middle.

I read an autobiography of Benjamin Franklin today. He spoke highly of a religious sect that refused to write their laws down. They felt it was absurd to think that they had come up with the perfect laws that would govern all future generations. If they wrote it down, future generations would consider it sacred and would dogmatically enshrine those views rather than improving upon them. Ironic that we do the same to him.

I like the idea of the Constitution as a living document, updated over time, but I'm also really glad it's so hard to amend. It's not perfect, but there are usually extremely good reasons for pretty much everything in there, and so if we're going to change something, it seems like a prerequisite should be a deep understanding of why something was put in there in the first place.

Take the Electoral College. It's en vogue right now to talk about abolishing it (it's also popular to talk about it as if it's sacred, and in both cases, it seems a lot of people's feelings about it are based on whether or not their favorite candidate won a recent election, but I digress). If people want to change or even remove it, that's fine, but they should first have a very deep understanding of why it is how it is - an understanding that's a bit deeper than they got in their high school U.S. Government class.

If you go back and read the Federalist papers, for example, you can't help but come away with a profound admiration for how much thought people put into these things, even if you don't agree with their conclusions. There's just a ton of wisdom and thought there. If you can come up with something better, great, but among other things you really should have to articulate their original reasoning and make a good case for how their concerns aren't relevant now, or that your idea is a better set of tradeoffs, etc. Just saying that the EC isn't fair falls way short of that - yeah, they thought about stuff like that, a lot.

Another reason why it's good to have a hard-to-modify Constitution right now is because we are currently pretty terrible at negotiating politically and building any sort of consensus - the hard work of bridge building is often skipped, and so more legislation is passing with the slimmest of majorities, and each presidency seems to do more via executive action. (And to whoever is tempted to respond with, "yes, the X party is terrible at this" needs to take a closer look at their preferred party, because both of the 2 major parties are terrible at it, just often in different ways. But they are both corrupt and broken to the core, at least on the national level) If we can't pull back from this and get to a more sane working and collaboration environment, the "unamenadability" of the Constitution might be the thing that saves us (or, maybe, the thing that delays our drive off the cliff by a few years at least).

See also: Chesterton's Fence. https://www.chesterton.org/taking-a-fence-down/

There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

The Chesterton quote I was thinking of while reading this article was:

> The business of Progressives is to go on making mistakes. The business of Conservatives is to prevent mistakes from being corrected.

I've built several Chesterton's Fences and watched as they were torn down by people who didn't fully understand the reasons why I did what I did.

Chesterton's fence stands tall and proud still.

To me the first step to fix this is understanding why anyone would want to amend it?

It seems like it was set up to be pretty bare bones, to resolve international and interstate disputes.

Today it looks like the federal government spends more in each state than the states do on themselves. This means that people in Texas (as a whole) have more say over spending in New York than people in New York do.

This makes it impossible for new states to enter the union, and you end up with spending policy in every state close to the median national voter, which makes everyone unhappy.

I think you should revoke incoropration and let each states constitution reign supreme as was originally intended.

California wants legal marijuana but the (badly interpreted) commerce clause makes this technically illegal.

NYC wants appropriate gun laws set by its residents, but due to 2A, it can't.

Revoke 14A and the temperature of the federal government will cool down.

I propose a constitutional amendment to ban political parties. ;)

But seriously, that would be interesting. Our Founding Fathers never intended there to be this entrenchment of two parties. It would make polarization harder because, well... what are the sides? It would also force greater civic participation to know what candidates actually stand for, and not just at the federal level.

I'm excited about Ranked Choice Voting [1]. If it was adopted in more races I think we would start to see much more variety on issues rather than being limited to just two viewpoints (i.e. increased third party participation).

1. https://ballotpedia.org/Ranked-choice_voting_(RCV)

I’m voting for a 3rd party candidate likely to be a spoiler for exactly this reason, to try to give the dominant party in my state the kick in the ass they need to implement some version of RCV. Even though I support the dominant party, I don’t support the lack of RCV in their wins and the outcomes that causes, so this is my protest vote to put it on their agenda.

Even if you forbid parties there will be some form of alliances of people running for office. Especially if media focusses on the "big names" in many electoral districts the local candidate is less relevant than who they team up with. Having parties makes that aspect documented and allows for laws and other regulation on finances and procedures around that.

George Washington intended that. But realistically, it's the nature of the beast.

Call it whatever you want, you're going to get people with roughly aligned goals exercising their Constitutional right to peaceably assemble to pool their resources to enact legislation they want.

"Ban political parties" is about as much of a thought out solution as "fix problems".

Exactly. It essentially amounts to "ban people from talking to one another" in the end.

How do you define "political party?" There's always going to be some equivalent to organize votes across 535 delegates.

I would say go the other direction. A lot of European countries seem to have a lot of success with systems where political parties are officially part of the electoral system.

> An unamendable constitution is not an American tradition. U.S. state constitutions are much easier to amend than the federal Constitution.

This is the problem and the solution. The more power and control that's been forfeited to the Federal gov, the less and less effective that entity has become. Yet the less effective it becomes the more push there is to give more power to Washington DC.

The solution is simple. Return - at least temporarily - to more of a pre New Deal mindset.

I wish people (of both sides) who declare "the system is broken" etc would seriously ask themselves, is it because your particular issue didn't go your way? How would we run a stable country if that were the principle to follow?

There was the line "it may backfire on you sooner than you thought" and I think there's some good caution in that statement. Take your own argument out of the picture -- would you be happy for the principle by which you're suggesting we operate be on the other foot and the majority be in the hands of your opponent?

I come to think that democracy is, more than anything, learning how to lose gracefully and without a revolution. So many people now seem to believe, if I lose, it must be broken and deserves a revolution. On both sides.

United States unamendable national and state borders are also a factor. Whatever one thinks about Brexit, it allowed EU to continue with countries that are committed to EU and for UK to consider what's best for UK, including welcoming Hong Kong residents not enthusiastic about takeover by China. If California and Texas go their own way and borders between states are adjusted to accommodate red and blue area, maybe current system is all that is needed. CA and TX can be still part of Nato and have a free travel arrangement with each other, changes do not have to be extreme.

> can be still part of Nato and have a free travel arrangement with each other, changes do not have to be extreme

I've spent the last past decade pointing that out to people. People act like a state being separate from the US and independent is soooo absurd, logistically.

But the US can still assist on a natural disaster just like it does in all of the Americas. Common defense can occur, as you point out. Visa and waivers could be easy.

I always like to imagine what level of state tax would I tolerate if I was only paying income taxes to just California. Since California doesn't get much/anything back from the Federal Government from its remittances, I bet California wouldn't even need to raise its states taxes.

It's absurd because Californian's aren't really a nationality in the way the British or French are. People talk about red states and blue states, but that's just the mix of rural/surburban/urban people in the state. Rural Californians are much more in common with rural Texans than with Los Angelenos.

There is more cultural variance within just Spain than the entirety of the USA. We truly are one people.

Ironically, calling for a USA that is just an common defense alliance with open trade borders is pretty much what conservatives want. They'll be happy to cut taxes, and let California experiment with what it wants.

The counterpoint being that the cultural similarities aren't a line in the sand on being separate. There are plenty of places that are similar and separately sovereign.

But let me make it less absurd to you:

"Hey Republican House and Senate, trade offer: California gets sovereignty, you make the democrats lose 55 electoral college votes and essentially never have to hear from them ever again for all eternity"

I honestly think they would bite.

> hasn’t been amended in any meaningful way since 1971

Already inserting subjectivity into the discussion to support it's premise. I'm not going to like this article.

> It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder

Yes, systems find stability, turbulence finds a local minima. Of course a lot more happened early on than later, if you expect a flat, linear, normal distribution of changes to something over time you don't know enough about what you're talking about to be talking about it.

Maybe the constitution has lasted 200 years precisely because it is hard to modify. A constitution should be harder to change than just passing any old piece of legislation. If it's just as easy as passing any law it's not a constitution, just another law.

If you think it's hard to amend the constitution, just wait until a constitutional convention convenes in DC in the next 5-10 years, we are almost there, something that hasn't happened since the Continental Congress, it's going to happen soon and it's going to be very interesting. I hope they ratify the equal apportionment amendment.

https://archive.ph/PXhv8

In the US, we used to amend constitutions fairly regularly (at the Federal, State levels, but I’m most familiar with Federal and New York), especially through WWII.

With a few exceptions (the prohibition is the biggest one that springs to mind), the trend line has generally been progressive.

We stopped making meaningful changes around the 1960s, read into that what we may. Regardless, our governmental institutions have proven to be fundamentally unmalleable (brittle?) in the last 60 years, which is a huge break from the norm.

The only other period comparable to this was the three generations leading into the American Civil War, which went 60 years without a federal amendment. But that period saw tons of “progress” at the state level, whereas this period has none.

I don’t have any conclusions, just food for thought.

The 11th and 16th amendments are ones that I argue shouldn't exist. They were ratified in reaction to Supreme court cases that respectively denied state immunity and federal powers.

It was progressives who outlawed booze. Don't retcon that word to mean "whatever I approve of today."

I think we’re using different definitions of “progressive”.

I’m using the dictionary definition “favoring liberal ideas”. I think you’re referring to big-P “Progressive”?

Regardless of whether the temperance movement identified itself as “progressive” or which political party germinated it, prohibition is not a liberal idea: restricting the liberty to consume alcohol is not an expansion of freedom.

The policy was bundled into the nominally “Progressive” platform of the 20th Century, but that doesn’t make it a progressive policy. North Korea and the Congo are nominally Democratic Republics, but their claiming the name doesn’t change the definition of democracy or republic.

Call an Article V Convention per https://conventionofstates.com/ and belie The Famous Article.

Americans will line up behind fiscal reform and a rejection of our globalist overlords.

I'm not excited about it (and I agree with your last 5 words). It's too easy to subvert. We have so much history, see the SC link I put in the thread.

The states are a much safer venue.

I disagree. The states are so many license plate stamping operations. Progressivism is a Tower if Babel.

The best thing about the Constitution is that it is very hard to amend. That protects it from the influence of short-sighted radicals who want to implement selfish policies at others' expense.

The 2nd Amendment does not apply to semi-auto rifles, nor does it apply to bolt action rifles, pistols, or revolvers. The 2nd Amendment RESTRICTS GOVERNMENT. The technology of the firearm is irrelevant. The restrictions on government remain the same, regardless of the firearm. The Second Amendment was not written to grant permission for citizens to own and bear firearms. It forbids government interference in the right to keep and bear arms, period. The right of the people to keep and bear Arms, shall not be infringed.

So it’s functioning as expected and as intended.

These people don’t seem to understand that.

> These people don’t seem to understand that.

These people are operating under the false premise that their views are representative of some consensus that should be ratified in law. In truth the consensus they imagine is merely the prevailing group-think of their own preferred cohort.

A commentator on a Federalist Society conference this evening mentioned this project:

https://constitutioncenter.org/news-debate/special-projects/...

Interesting to read the varying contentions made by the respective groups on how to change the existing U.S. constitutional structure.

Well, US constitution is still more amendable than EU constitutional treaties, which require unanimous agreement of all states.

Not as bad as someone ele is one of the dumbest lines of argument.

Comparison is "dumb"? Is it now a logical fallacy? Better ban history 101.

No more comparison. I'll just... uh... compare things against some theoretical ideal I make up.

Maybe get some psychological warfare experts and brand it? Historyaboutisim?

> No more comparison

There's no need for a strawman.

The comment didn't say "no more comparison", it said comparing to the lowest of the low is dumb. I agree.

If you're a sporting team, is it productive to say "We're better than the team on the bottom of the ladder" ? (Even though you're second-last)

When you're a country, it's equally as pointless to say "We're doing better than <China/North Korea/Central African Republic/etc>

The only reason a person would ever make a comparison "down the ladder" is because they want to paint themselves in a better light. They have no interest in improving anything, and when they spend enough time looking down the ladder, that's exactly where they'll go.

Sporting teams, countries and people who are interested in improving make comparisons "up" - it gives them something to strive for.

Do you want to improve?

I'd wager half of the people that would make the argument he's replying to believe that the EU government is kind of alright.

Consequently, to those people, it's an excellent reply.

Maybe it wasn't for you.

Good article, appreciated the charts, though the commentary on them seemed a bit selective. I was disappointed though that the case wasn't made for the actual cause of the recent unamendability (since 1971, as they say). Why did opposition to abortion make ALL amendments unpassable?

People in power today are too corrupt to be trusted with amending the constitution. Most amendments have only served big financial interests by stifling free-market competition. Ideally, we should roll-back the entire legal system to how it was in the 1900s.

IIRC, the first constitution placed more power in the hands of the Demos, which would have allowed more modifications. The framers scrapped it and churned out a second constitution with more limited powers for the people, partly to make it harder to amend.

One had high hopes for TFA, only to discover another tired hagiography of wise "Framers" whose perfect work (which mentions, let us recall, both "free Persons" and "other Persons") has been failed by its stupid unworthy subjects.

Bullshit. The constitution was a conspiracy of rich assholes who were tired of state legislatures occasionally favoring the interests of poor farmers, workmen, and merchants over those of rich assholes. They rammed through the constitution, and never again had to worry about legislatures cancelling debts owed to them.

Forget amendments. The whole rotten thing should have been thrown out in 1790, and in every year since then. If we have ever made any progress, it has been in spite of the constitution, not because of it.

Yeah, exactly. There's so much propaganda in the USA depicting the constitution as some sort of inspired document written by enlightened men, and then most people don't bother reading beyond what they learned in school.

One only need look at how undemocratic the constitution was. Only one federal office, the House of Representatives, was elected by the people (and at the time the constitution was written, only men with property could vote). The president and vice president are elected by an electoral college. Senators were elected by state legislatures. Supreme Court Judges are even further insulated from the people, being appointed by the President. "The People" had extremely little influence on the federal government, and it's only gotten marginally better since.

Hopefully everyone understands how much the constitution did to protect the wealth of slave owners, since this is taught in schools. But it also made western land speculators richer by creating a government capable of exerting sufficient power over those western lands to open them up for settlement. It made the holders of revolutionary war debt richer by creating a government that could assume that debt and pay it off. It made owners and investors in manufacturing enterprises richer by creating a government that could protect industry with tariffs while keeping states from taxing the flow of goods or interfering with contracts.

Every framer of the constitution belonged to at least one of these groups, and they benefited when it was ratified. The book An Economic Interpretation of the Constitution of the United States by Charles Beard goes into great detail on this. It's out of copyright and freely available online: https://en.wikisource.org/wiki/An_Economic_Interpretation_of...

One of the reasons I like the Australian Constitution is because it pretty much runs on convention. Our top leader is the Prime Minister. The PM is not even mentioned in our constitution.

> It’s lasted more than two hundred years and hasn’t been amended in any meaningful way since 1971, more than half a century ago.

1971 again

the baader-meinhof phenomenon is following me everywhere i go

The alternative is a Constitutional Convention. Considering that each state would have equal representation, I can't imagine anyone on the Left liking that idea.

The alternative is basically the same thing. It takes proportionally just as many states to call a Constitutional Convention as it does to propose an Amendment. You're not getting around 2/3s.

And once an Amendment is proposed, it still takes 3/4 of the states ratifying it in some manner.

The mechanisms are slightly different, but the numbers are the same.

I was disappointed that the article didn't elaborate on this possibility. The possibility of a Convention of States [0] looms closer than many realize [1]. Only 34 states are needed call the Convention. Although only 19 have officially voted in favor so far, it's believed that the potential number may be higher if slightly different but equivalent provisions are counted. Given a charismatic enough President whose party controls most of the statehouses, getting over the 34 vote threshold is not impossible. Depending on your political leanings, the possibility could be either thrilling or dire. [2]

[0] https://conventionofstates.com/

[1] https://www.msn.com/en-us/news/politics/closer-than-most-peo...

[2] https://www.theguardian.com/commentisfree/2022/sep/19/conser...

You're absolutely right; this could happen at any time. For instance, when the midterm election of an uninspiring administration coincides with recession and rising oil prices...

Inevitably, the first amendment to come out of such a circus will govern who can use which public restroom.

What are the amendements that they want to pass, but cannot?

Some examples:

* Equal rights ammendment

* DC representation

* Abolish electoral college

* one person one vote

* End the death penalty

* Campaign finance reform

The Equal Rights Amendment would have been nice. A Supreme Court member did say that without it, the Constitution does not prohibit discrimination based on sex.

There are certain rights that are broadly popular, such as the right to birth control and the right to be gay, which are currently only protected by Supreme Court judgment. A member of that court explicitly called for reconsidering them. They are so broadly accepted that nobody even does polling for them, but there is so little chance of passing an amendment to protect them that nobody is even trying.

You don't need a constitutional amendment -- just pass a law. If they're so broadly accepted, it shouldn't be difficult.

> the right to birth control

You mean the right to contraceptives paid for by the public, covered by insurance, or administered by people who may have sincerely-held religious beliefs against contraception? No state, Supreme Court judgments aside, forbids an adult from paying for birth control pills on their own prescribed by a doctor who sees it fit.

> the right to be gay

What? Obergefell requires states to grant and recognize marriages between two people of the same sex. That seems like a pretty narrow part of "being gay".

inalienable rights shouldn't be subject to the whims of what most people want. sure that kicks the fan down the road by having to define what is an "inalienable right", but "mob rulel, "tyranny of the majority" whatever you like to call it shouldn't be a basis to deprive certain peoples of basic rights

I agree, inalienable rights shouldn't depend on what other people think or want. That's why basic rights should only be negative rights; in the classical formulation, your rights to be free from the government depriving you of "life, liberty, and the pursuit of happiness".

Increasingly, "basic rights" are being morphed into positive rights that require other people supporting (whether in though, speech, or action) said right. Right to birth control? Someone needs to make and administer those pills. Right to housing? Someone needs to build and maintain the houses. I'm afraid that such rights will always depend on the whims of those around you, and hence cannot be truly basic.

Thomas didn't just single out Obergefell. He also mentioned Lawrence v Texas, which overturned sodomy laws.

And Griswold, which lets you pay for birth control with your own money. It says nothing about the public paying for it.

> Griswold

You're right -- I was thinking of more recent cases that expanded upon Griswold. Thank you for reminding me.

As I understand it, Justice Thomas's mentioning of Lawrence v. Texas and other laws "to be revisited", so to speak, were limited to the application of substantive due process in arriving at those judgments, and not necessarily to reverse the outcome of those judgments.

That's right. He just wants to take those old cases out for a spin, give 'em a tune up, kick the tires a bit. No chance he'd take away some rights that George Washington didn't put explicitly in the Constitution.

This equal rights principle is implied by "all men are created equal" and both parties would support the explicit amendment, maybe for different reasons. The red camp wants to end "affirmative" action, while the blue camp wants to affirm rights of minorities. I guess the wording of the amendement is what would cause a fight.

Scalia disagreed. He says only purpose of the 14th amendment was to make sure slaves were on equal footing. If women had rights they wouldn't have needed an amendment to vote.

He's dead but at least five people almost certainly agree with him.

A new user commented:

  excite1997 0 minutes ago | unvote | parent | next [–]

  This thread is likely gonna be a minefield and get canned, but the article takes a swing at the 2nd Amendment, for example, pretending to be impartial but calling it a "reinterpretation".

I was surprised to see it go dead almost instantly. It's a fair comment (well, the minefield part is unnecessary). I wanted to reply with:

Listening to the decision is fun (Heller 2008).

Justice Antonin Scalia reads Heller(2008)[1] for the majority:

https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/... (Justice Breyer also reads the dissent)

[1] https://www.oyez.org/cases/2007/07-290

Weird. I have showdead on but was this actually deleted? I see no such comment, but see the other dead comment where someone said a poem or something in another thread.

Yea, all I can think of is that it was deleted, I think a user can do that. I wish I had screenshotted what happened when I hit reply, I thought I saw [dead], but idk.

looks confusely at 1992's 27th amendment

Canada points and laughs.

The US constitution is an antiquated document written by men who enslaved others. It contains no explicit right to privacy or protection from government surveillance. It does not establish a secular state (only the right to worship as one chooses, which is different) and it features an overly broad freedom of speech that facilitates the spread of misinformation and lies. it chooses the president by an indirect mechanism and it nowhere guarantees the right to vote.

It needs to be rewritten completely but this is impossible because it is treated as a sacred text.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

A two sided story and I think they succeed in unpacking aspects of the two sides.

I believe the most likely constitutional change attempts in the short term would be libertarian revisionist windback and amplification of states rights. Reproductive rights would be next but I suspect is less likely to get up because of the impending shift in power balance in government. The revisionist thing, is to me likely because it's like the supreme court stacking and vote shenanigans already seen by the GOP. It's an easy sell to the state governments and wider republican voter.

TLDR: "All this democracy stuff would work so much better if I could just circumvent all those backwoods idiots who don't vote and think similarly to my clearly superior urban, progressive sensibilities"

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