

Let's Give Up On The Constitution - mehrshad
http://www.nytimes.com/2012/12/31/opinion/lets-give-up-on-the-constitution.html

======
greenyoda
_"This is not to say that we should disobey all constitutional commands.
Freedom of speech and religion, equal protection of the laws and protections
against governmental deprivation of life, liberty or property are important,
whether or not they are in the Constitution. We should continue to follow
those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president's term
should last or whether Congress should consist of two houses. Some matters are
better left settled, even if not in exactly the way we favor."_

So the author is advocating for an arbitrary system in which we decide in ad-
hoc ways which parts of the Constitution we want to follow. Unfortunately,
this already seems to be happening, as our government sees fit to disregard
various provisions of the Bill of Rights, e.g., warrantless wiretapping, or
the President's assertion that he can dispatch drones to kill even US citizens
without due process.[1] It seems that the government proves to us every day
that it needs the Constitution to keep it on a short leash.

Since the Constitution contains a process by which it can be amended, why
don't we just follow that? Over the years, amendments have given us some very
fundamental changes: the abolition of slavery, the right of women to vote,
presidential term limits, etc. Granted, it's a slow process that the author
may be impatient with, but it's probably preferable to having a government
that can arbitrarily dispose of people's rights.

[1] [https://ssl1.washingtonpost.com/opinions/obamas-kill-list-
is...](https://ssl1.washingtonpost.com/opinions/obamas-kill-list-is-unchecked-
presidential-power/2012/06/11/gJQAHw05WV_story.html)

~~~
SoftwareMaven
That was _exactly_ my thought. Who gets to decide which pieces get ignored? A
pundit who has his favorite pieces?

I agree the laws of the land, and, by extension, the Constitution, need to be
altered to reflect the times; but an _ad hoc_ method is not the right way. An
_ad hoc_ method simply means the people with the most power get to decide,
something the Founders were decidedly trying to prevent.

One of the greatest accomplishments of the Founders was the recognized the
need to change with the times and laid a foundation for it. As a country, we
just seem to be too (lazy?) to follow the guidance.

~~~
csense
> As a country, we just seem to be too (lazy?) to [amend the Constitution]

The problem with passing Constitutional amendments right now is the highly
partisan political climate of the last decade or two: The parties divide
nearly fifty-fifty and often define themselves by their opposition to the
other party. Many of the most commonly raised ideas for amendments -- getting
rid of the death penalty, legalizing gay marriage, abolishing the Second
Amendment -- are deeply divisive issues among the people. These factors make
it very difficult for anyone to get the big majority necessary for a
Constitutional amendment.

Changes in US party politics will ultimately be forced by demographics.
Minorities are increasing due to higher birth rates and immigration. The baby
boomers will eventually start dying. Society as a whole is becoming more
secular, especially among the young.

Either the Republican party will redefine itself in order to steal some
categories of currently Democratic voters, a new party will rise to
prominence, or (IMHO the most likely scenario) when the Republican party
ceases to be a threat to Democrats' political agendas in ~10-40 years, the
Democrats will themselves collapse.

The fault lines are already there: Liberals like Obama favor massive spending
on ambitious social programs. Civil libertarians -- there seem to be quite a
few here on HN -- want a reduced government presence and an expansion of
individual rights. Centrists like Bill Clinton aren't opposed to overseas
military intervention and support balanced budgets and the reform of social
programs. It's easy to see this coalition disintegrating without the pressure
presented by their current common political foe, the Republican party.

~~~
philwelch
> The fault lines are already there: Liberals like Obama favor massive
> spending on ambitious social programs. Civil libertarians -- there seem to
> be quite a few here on HN -- want a reduced government presence and an
> expansion of individual rights. Centrists like Bill Clinton aren't opposed
> to overseas military intervention and support balanced budgets and the
> reform of social programs.

The fact that you refer to "massive spending on ambitious social programs" as
a "liberal" idea, and distinguish "liberal" from "civil libertarian", already
kind of belies the issue. In most countries, there's a distinction between
liberals and leftists. A liberal is someone who favores reduced government
presence, strong individual rights, and markets--kind of like US libertarians,
except far less extreme. An example would be the UK Liberal Democrats.
Leftists are the ones who favor workers and social programs, and have strong
ties to labor unions, like the UK Labour party. Conservatives are like
conservatives here except, again, less extreme. Conservative parties in
countries like the UK or Canada still tend to favor universal healthcare, for
instance.

As we've seen in the UK, liberals can and do coalition with either side. You
tend to see similar things in the US, though--whatever party holds the
Presidency usually wants to expand executive powers at the expense of civil
liberties, which leads the other party to reflexively take liberal stances.
For instance, the Clinton administration's efforts against cryptography and
gun ownership led to Republican opposition on both fronts, while the Bush
administration's advancement of warrantless wiretapping and indefinite
detention led to strong Democratic opposition that disappeared as soon as a
Democratic president was pushing for the same things.

Actually, the problem is that there is no coherent liberal agenda in America.
Philosophically, gay marriage, gun rights, opposition to warrantless
wiretapping, and marijuana legalization are all liberal viewpoints, but out of
the current political parties, each position is respectively supported by
Democrats, Republicans, no one, and a minority on both sides.

------
archgoon
This would be a very bad idea.

If you note, his list of quotations of people saying "Let's just ignore the
constitution" basically ends with the abolitionists. Shortly after them, the
bloodiest war in American History (form our point of view) was fought. The
Constitution came out of that war as a document that all states were basically
locked into. You weren't allowed to quit.

If you were to dissolve the Constitution, and brought 50 states back to he
negotiating table (especially in this time of hyperpartisanship), I doubt
you'd get 50 states walking back out together.

For all it's flaws and bits of archaic pedantry, it's the one thing that you
can get the majority of Americans to swear their allegiance to.

Also, I rather like the fact that today, people feel that you can't ignore the
Supreme Court. This wasn't really the case 150 years ago.

~~~
learc83
To your point, here is another of his absurd claims.

>the president would still be checked by Congress and by the states

The states haven't been able to "check" the Federal government since the Civil
War.

~~~
natrius
I'd put the date a little later: 1913. The ratification of the 17th Amendment
got rid of the states' representatives in the federal government. Most
citizens don't care about the particular divisions of power between levels of
government, and now that state legislatures can't effectively defend their
purview, it shrinks by the day.

~~~
jrs235
This is also why the Senate can't start tax authorizing bills... The states
weren't suppose to be able to raise taxes on the people for feudal matters,
only the people should be able to do so through their representation in the
federal government, the House of Representatives. I think we could fix a lot
of issues by repealing the 17th amendment.

~~~
jrs235
*feudal -> federal

------
learc83
The proposal is to ignore the Constitution and give congress unlimited power
to congress and the executive branch to enact whatever laws/executive orders
they like--with no oversight?

Or does the supreme court still have the power to overturn laws that we
"respect?" Who decides what rules we "respect"--do we make up a list every ten
years?

Additionally, this suggestion is completely infeasible. The Constitution may
have been eroded slowly over the years, but if the Government declared
tomorrow that we were no longer bound by our founding document, there would
most likely be a rebellion or maybe even a military coup.

Every member of the United States military is sworn to "...support and defend
the Constitution of the United States against all enemies, foreign and
_domestic_...", and most of them take that oath very seriously.

------
logn
Pretty weak article. He suggests ignoring the Constitution because only the
House is supposed to present revenue measures. I was hoping he would detail
every way the Constitution has been eroded and sidestepped and conclude that
it's an ineffective document in need of updating: more teeth and more
specifics.

------
mynameishere
Summary: "I hate the US's form of government, therefore let's replace the rule
of law with the rule of dictate." Thank you nytimes for making your multi-
decade anti-democratic, anti-legal, anti-American agenda more explicit than
usual.

~~~
desas
Where is anything said about the rule of dictate?

The UK doesn't have a codified constitution - parts of it aren't written down
anywhere at all. Any act of parliament can override any existing act or law,
parliament can pass any new act it pleases.

As anywhere else, we're not perfect but it's not a complete disaster.

------
bmmayer1
Yeah, the fact that money bills have to originate in the House has nothing to
do with an 800-year-old fundamental principle of the people having a vote in
their own taxation. It's clearly an inconvenient constitutional loophole that
Madison put in to let John Boehner obstruct Obama and the Democrats.

What a joke.

------
alan_cx
Out of interest, what is the comparison between a constitution and a religious
book, like the bible or Koran?

Im not saying there are no differences, but I see a lot of parallels, and I
see lot of the same down sides or mistakes. US folk do seem to worship and
argue the meaning of the constitution like people do with religious texts.

If the parallel works, the main issue I see is that religious groups and US
citizens do seem to waste time and become paralysed by arguing meaning and
intent, while action gets neglected. Again, from an out side POV, it look like
the US constitution makes the US its self politically seize up, while US
international policy seems wild and uncontrolled. My out side assumption is
that the US constitution says a lot about internal politics, but nothing
controls or governs its foreign policy. And, in that respect, may I suggest
the adoption of Star Trek's Prime Directive as a start?

Lastly, does any one see a time when the US gets divided over how the
constitution is interpreted? Will we see fundamental constitutionalists? Will
we see something like a Catholic / Anglican split? Or different groups
following different interpretations like with Islam? It seems that the right
in the US is fairly constitutionally fundamental, could the extremes of them,
with all their guns, become insurgents or terrorists to try to enforce their
notion of the constitution? It seems to me, that the constitution actually
allows for that. I mean, they do seem to see the centre right, or what the US
might call the democrat left, as an internal threat to the US and its
constitution. OK, perhaps laughable now, but what if this nasty vicious
election process continues to get worse and worse? What if people begin to
believe the lies? At what point might that tip over in to a violence the
authorities can and wont suppress? Could US troops really fire on US citizens
fighting for the constitution?

Just a New Years Day thought......

------
charonn0
_The basis of our political systems is the right of the people to make and to
alter their Constitutions of Government. But the Constitution which at any
time exists, till changed by an explicit and authentic act of the whole
people, is sacredly obligatory upon all. The very idea of the power and the
right of the people to establish Government presupposes the duty of every
individual to obey the established Government._ [1]

[1]: <https://en.wikisource.org/wiki/Washingtons_Farewell_Address>

------
n3rdy
Lets just scrap the government altogether. We're all adults, lets act like it.
We don't need to elect a bunch of people to tell us what to do and what not to
do.

"Good people do not need laws to tell them to act responsibly, while bad
people will find a way around the laws." - Plato

~~~
lucian303
True. But does a better alternative to rule of law exist? Perhaps. I'd love to
hear thoughts on this.

~~~
daeken
_Better_ is arguable, but I really do recommend The Machinery of Freedom by
David Friedman (<http://en.wikipedia.org/wiki/The_Machinery_of_Freedom>) for
_an_ alternative. It's well thought out and very detailed.

~~~
nacker
Sounds interesting, but I have doubts about utilitarian arguments too. Why not
check out Rothbard's "For a New Liberty"? It's in audio form for free here:

[https://mises.org/media.aspx?action=category&ID=87](https://mises.org/media.aspx?action=category&ID=87)

Chapter 12. The Public Sector, III: Police, Law, and the Courts is
particularly impressive.

EDIT: Here is Rothbard's amusing argument against utilitarianism:

"Let us consider a stark example: Suppose a society which fervently considers
all redheads to be agents of the Devil and therefore to be executed whenever
found. Let us further assume that only a small number of redheads exist in any
generation—so few as to be statistically insignificant. The utilitarian-
libertarian might well reason: “While the murder of isolated redheads is
deplorable, the executions are small in number; the vast majority of the
public, as non-redheads,achieves enormous psychic satisfaction from the public
execution of redheads. The social cost is negligible, the social, psychic
benefit to the rest of society is great; therefore, it is right and proper for
society to execute the redheads.” The natural-rights libertarian,
overwhelmingly concerned as he is for the justice of the act, will react in
horror and staunchly and unequivocally oppose the executions as totally
unjustified murder and aggression upon non-aggressive persons. The consequence
of stopping the murders — depriving the bulk of society of great psychic
pleasure — would not influence such a libertarian, the “absolutist”
libertarian, in the slightest. Dedicated to justice and to logical
consistency, the natural-rights libertarian cheerfully admits to being
“doctrinaire,” to being, in short, an unabashed follower of his own
doctrines."

------
adventured
Our core system of government - which has done pretty well for 200+ years
despite all the undermining Congress & the Executive branch have done - is
still better than the rest. It has done so well because it's a system built on
principles that are eternal, it was specifically not built for any given time,
but rather for all time. The only problem we have, is we need to return to a
constitutional system of government, not be an extraconstitutional system,
where the government intentionally ignores its limitations when it feels like
it. We need to be a Republic again, not a mob rule Democracy that eats itself
alive as is occurring right now.

The biggest problem America has is a vastly overreaching government, and it's
overreaching in every regard possible, from privacy to fiscal to military to
general freedom.

The only people advocating for an end or change to the Constitution, are those
interested in various forms of authoritarian rule. Their goal is always, one
way or another, to give more power to some central authority, and to limit
freedom of the individual.

~~~
natrius
_"Our core system of government ... is still better than the rest."_

By what measure?

~~~
smsm42
I wouldn't really vouch for "the rest", but Constitution so far held the
government from infringing on many rights of the citizens - such as free
speech, self-defense, etc. - that are commonly infringed in many European
nations, for example. It does not mean it was perfect - many rights were still
massively infringed and usurped, Constitution is ultimately nothing but an
idea and people should still stand behind it for it to be effective - but it
fared better than without it.

------
mtgx
Giving up on the Constitution right now would guarantee that the rethinking of
the 1st, 4th and 5th amendment would be a lot worse than they currently are. I
wouldn't risk that.

------
lucian303
We already have. That's why we're in this mess. The only time the constitution
is invoked by politicians is to stall the other side because they know that
the basic tenets are gone. The Bill of Rights? One or two amendments might
still apply in reality. MIGHT!

If you don't like the constitution, get your officials to amend it. That was
built into the constitution as the exact fix for this kind of problem, and
it's the way to "modernize" the constitution.

Good luck with that!

