
America’s Fragile Constitution - agarden
http://www.theatlantic.com/magazine/archive/2015/10/our-fragile-constitution/403237/?single_page=true
======
_petronius
> Even if we discount the failures of other presidential democracies, though,
> we should not dismiss the fact that the U.S. Constitution was modeled on a
> system that collapsed into civil war, and that it is inherently fragile.

Not to mention the US descending into civil war itself (due to irresolvable
conflicts over pro- and anti-slavery voting blocks in the federal government).

I think people often forget that the US Constitution explicitly contains
mechanisms for its amendment and even wholesale replacement (by constitutional
convention), precisely because it was acknowledged that it had to be open to
revision as required. The fact that in the modern era constitutional
amendments are near impossible and therefore have to be worked around[0], and
the unlikeliness of a constitutional convention being called any time soon, is
a sign of the dysfunction of the system.

I'd also argue that constitutional originalism is a very new concept, and
treating an eighteenth century legal document like a sacred text seems ...
rather odd.

[0]:
[https://en.wikipedia.org/wiki/National_Popular_Vote_Intersta...](https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact)

~~~
ckozlowski
>we should not dismiss the fact that the U.S. Constitution was modeled on a
system that collapsed into civil war, and that it is inherently fragile.

I don't see this so much as a issue with the modeling of the Constition, but
the larger unresolved question of slavery in the United States. They largely
"kicked the can" with that question in the Constitution with the "Three-
Fifths" rule, but I'd argue that the scene was set for a clash regardless.

I might go a step further and say that the Constitutions wasn't fragile, but
because it established a strong Federal system, it set the stage for the
conflict to come because the Southern states would now be accountable to
Federal law, whereas slavery might have persisted under the Articles.

In my opinion, did it have a hand in the war to come? Yes. Was it the cause?
Far from it. The war settled not only slavery, but any lingering questions of
the supremacy of that document, and it's never been questioned since.

~~~
xlm1717
Agreed. That the Civil War happened does not make the Constitution as a whole
fragile. After the Civil War occurred, they removed the three-fifths rule and
took away it's major weakness.

>it's never been questioned since

It's often questioned today by asking whether we should follow a "legal
document" (instead of the Law of the Land that guarantees our rights) from the
18th century (as _petronius did).

------
crusso
Blaming the Constitution for many of our problems is like getting into your
new Tesla drunk, disabling the safety features, then blaming it when you plow
into a bus full of school children.

Ben Franklin stated it well:

 _In these sentiments, Sir, I agree to this Constitution with all its faults,
if they are such; because I think a general Government necessary for us, and
there is no form of Government but what may be a blessing to the people if
well administered, and believe farther that this is likely to be well
administered for a course of years, and can only end in Despotism, as other
forms have done before it, when the people shall become so corrupted as to
need despotic Government, being incapable of any other._

~~~
eli_gottlieb
Oh, sure, right. The Constitution can never fail us, we can only fail it.

That surely doesn't sound like you're talking about a god /s.

~~~
dragontamer
The fundamental attribute of the Constitution is that it can change with the
times. The Constitution has been "corrected" 27 times.

There is nothing wrong with the US that cannot be fixed with what is _right_
with the US. The Constitution is the same. If there are any flaws... then we
can propose an Amendment and fix it.

~~~
ckozlowski
"There is nothing wrong with the US that cannot be fixed with what is right
with the US."

I really love that quote. (Bill Clinton, right?)

~~~
dragontamer
Sorta. I messed up the quote... so... Bill Clinton's version is slightly
better.

> There is nothing wrong with America that cannot be cured with what is right
> in America

------
wangii
Good read, thanks!

The argument is well established except that the author omitted one crucial
factor, which is, US became the only super power in the world in recent two
decades. At the time the Constitution was drafted, nobody in his/her wildest
dream that US would become the dominant power in this solar system. With the
existence of outer threaten, branches (or parties) were driven to cooperate
for their very own existence. The threaten was removed, so gone the drive.

My argument is also supported by one common phenomena in the business world:
it's really rare that a successful company enjoys no political infight. The
logic behind is the same: when insiders can obtain more benefit through
relative cheap inner fight, they are no longer interested in relatively
expensive, difficult and risky company growing strategy.

Is there anything missing/wrong in my logic?

~~~
adventured
The US became the sole super power after WW2.

Soviet Russia from 1946-1990 was never a super power, it was in fact weaker in
every objective respect than Russia has been the last ten years. Most of the
image of it being a super power was propaganda that turned out to be
completely false - namely that they had a powerful economy and global military
projection ability. Nearly all of their economic output figures were
fraudulent. That fraud became apparent with the collapse. This was a country
that for 40 years couldn't even keep its grocery stores stocked properly.

On a subjective basis, for about 20 years the USSR seemed powerful, but only
when compared militarily to Western Europe, Japan and China which had all been
decimated. Compared to the US they were not.

By 1960-1965 West Germany's economy was already bigger than the USSR. By 1965,
the US economy (possessing ~50% of all global manufacturing) was at least five
times larger than the USSR economy.

From 1950-1990, the USSR's economy was highly isolated, low on innovation and
weak, susceptible to constant threats of famine and shock (to say nothing of
the things Stalin did domestically). You could see that both in their
technology and products. The US post WW2 was a global export monster, highly
connected, with a very inventive economy, to go with the global reserve
currency. The US achieved by 1970 a median household income of about $45,000
(in 2014 dollars) - something nations are only beginning to catch up to now.
Needless to say, the USSR median household income was a small fraction of
that.

After WW2 the US had a truly global military position. It had North and South
America almost exclusively as its sphere of influence. It had military bases
in Japan and Germany. It had a system of global alliances spanning from Canada
to the UK to France to Germany to Australia to Japan. The USSR had nothing
even remotely like that, their few actual allies were weak and fragile.

~~~
dragonwriter
> it was in fact weaker in every objective respect than Russia has been the
> last ten years.

No, it wasn't. Most critically, in the capacity for projecting soft and hard
power beyond its immediate region -- they key factor distinguishing a
superpower from a regional power -- the USSR was far beyond where Russia is
now. It may be that Russia is a more effectively focused _regional_ power than
the USSR was (though, it must be noted, the areas where it exerts substantial
pressure largely are places where the USSR exerted _direct rule_ , and the
USSR exerted substantial regional influence far beyond those areas, so even
that is dubious.)

------
ameister14
Whoa, I wrote my thesis on this. Interesting to see their take on it.

The assertion that the framers didn't understand the flaws inherent in a mixed
constitutional system is false; Madison wrote about it, actually. He also
predicted the failure of the Constitution, but conceded that it was the best
they could do and possibly the best that could have been done at the time -
without a negative (essentially judicial review, but under the purview of the
senate as well as the judiciary) he essentially foresaw a fracturing. Of
course, we got Judicial review a few years later, but that's not in the
Constitution and is, as a result, a more fragile power.

~~~
npsimons
I'm glad to see an expert come to the same conclusion that my amateur study of
this subject has. The predicate in the first sentence in the article ("The
Founders misread history") really rubbed me the wrong way, as I've heard so
many people criticize the founders when they haven't even done a _tenth_ of
the study and research that the founders had. Perhaps they did misread
history, but at least they _read_ history, and lots of it. Hero/idol worship
is not a good thing, but claiming the founders were ignorant and backwards is,
quite frankly, ignorant and backwards. IMHO, anyone that wants to criticize
them should be held to the same high standard that the founders held
themselves to, ie, study history, _lots_ of it.

------
dynomight
The separation of powers seems to be our only saving grace at the moment.

The notion that one style of government is appropriate for all peoples in all
places seems absurd. The US constitution was written up by and for people in a
particular place and situation and the tensions that existed then look to have
escalated to the civil war and these tensions look to remain today. It's
interesting to read the anti-federalist papers.

~~~
WalterBright
What we have is a triumvirate with hammer-paper-scissors powers. Triumvirates
in history have tended to be stable governments over longer periods.

I think the article makes a mistake in not mentioning the 3rd branch - the
Judiciary.

~~~
ckozlowski
I agree. The independent judiciary, in my opinion, is what has been largely
responsible for the effectiveness of the U.S Government since it's inception.
This concept of a body that can rule on the constitutionality of laws and acts
was a revolutionary concept.

I want to take pains to emphasis that this is relative. Contemporary issues
and criticisms aside (not to mention those raised in the article), it's a
system that has served remarkably well, especially compared to its peers.

------
tsotha
There's nothing wrong with the American constitution. The problem is we don't
follow it any more.

~~~
vacri
Ambiguous wording in some places; crazy electoral college method for elections
that ensures a two-party system; and the fact that there have been over 20
things called _amendments_... all suggest that there are things wrong with the
American constitution. Does it mean it was a bad thing overall? No. But to say
that there's nothing wrong with it is to say that nothing in it is stale - and
regardless of your political leanings, I think everyone can agree that the
Third Amendment has been pretty stale for quite some time, for example.

~~~
wtbob
> crazy electoral college method for elections

The Electoral College is not crazy; indeed, IMHO what we need is for the state
legislatures to appoint their electors. What's crazy is the popular vote.

~~~
dragontamer
Electoral College by design was supposed to fail. The creators of the
Constitution never expected political parties to become a thing.

The House of Representatives were _supposed_ to elect our President, after the
Electoral College became deadlocked. That was the design of the Constitution.

The fact of the matter is, the Electoral College is NOT functioning as
designed. But whatever, that's how the laws of this country work and we are a
country of laws.

~~~
mvymvy
The National Popular Vote bill would guarantee the presidency to the candidate
who receives the most popular votes in the country.

The national popular vote winner would receive all of the 270+ electoral votes
of the enacting states.

The bill ensures that every vote, in every state, will matter equally in every
presidential election, and the candidate with the most votes wins, as in
virtually every other election in the country.

Every vote would matter in the state counts and national count.

The bill has passed a total of 33 legislative chambers in 22 rural, small,
medium, large, red, blue, and purple states states with 250 electoral votes.
The bill has been enacted by 11 jurisdictions possessing 165 electoral
votes—61% of the 270 electoral votes necessary to activate it, including 4
small jurisdictions, 3 medium-size states, and 4 big states.

[http://www.NationalPopularVote.com](http://www.NationalPopularVote.com)

~~~
tsotha
It will also probably be thrown out by the courts, too. Compacts between the
states have to be approved by congress.

~~~
mvymvy
Congressional consent is not required for the National Popular Vote compact
under prevailing U.S. Supreme Court rulings. However, because there would
undoubtedly be time-consuming litigation about this aspect of the compact,
National Popular Vote is working to introduce a bill in Congress for
congressional consent.

The U.S. Constitution provides: "No state shall, without the consent of
Congress,… enter into any agreement or compact with another state…."

Although this language may seem straight forward, the U.S. Supreme Court has
ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read
literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate
Tax Commission, the Court wrote: "Read literally, the Compact Clause would
require the States to obtain congressional approval before entering into any
agreement among themselves, irrespective of form, subject, duration, or
interest to the United States.

"The difficulties with such an interpretation were identified by Mr. Justice
Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee.
His conclusion [was] that the Clause could not be read literally [and this
1893 conclusion has been] approved in subsequent dicta."

Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:
"Looking at the clause in which the terms 'compact' or 'agreement' appear, it
is evident that the prohibition is directed to the formation of any
combination tending to the increase of political power in the states, which
may encroach upon or interfere with the just supremacy of the United States."

The state power involved in the National Popular Vote compact is specified in
Article II, Section 1, Clause 2 the U.S. Constitution: "Each State shall
appoint, in such Manner as the Legislature thereof may direct, a Number of
Electors…."

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote: "The
appointment and mode of appointment of electors belong exclusively to the
states under the constitution of the United States"

The National Popular Vote compact would not "encroach upon or interfere with
the just supremacy of the United States" because there is simply no federal
power -- much less federal supremacy -- in the area of awarding of electoral
votes in the first place.

~~~
tsotha
In other words, it's unconstitutional but the court is willing to ignore the
constitution. Lovely.

~~~
mvymvy
No. It's not unconstitutional.

In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the
compact at issue specified that it would come into force when seven or more
states enacted it. The compact was silent as to the role of Congress. The
compact was submitted to Congress for its consent. After encountering fierce
political opposition from various business interests concerned about the more
stringent tax audits anticipated under the compact, the compacting states
proceeded with the implementation of the compact without congressional
consent. U.S. Steel challenged the states' action. In upholding the
constitutionality of the implementation of the compact by the states without
congressional consent, the U.S. Supreme Court applied the interpretation of
the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing
that: "the test is whether the Compact enhances state power quaod [with regard
to] the National Government."

The Court also noted that the compact did not "authorize the member states to
exercise any powers they could not exercise in its absence."

------
raceyT
Fragile not for limiting the powers of government but for the tyranny it can
enable.

"it is likely to be well administered for a course of years, and can only end
in Despotism" Benjamin Franklin

~~~
crvrd
That specific line makes it sound like Franklin thought despotism would be a
result of the Constitution. But the full quote makes it obvious that he
thought very highly of the Constitution:

 _...this is likely to be well administered for a course of years, and can
only end in Despotism, as other forms have done before it, when the people
shall become so corrupted as to need despotic Government, being incapable of
any other. I doubt too whether any other Convention we can obtain, may be able
to make a better Constitution.... It therefore astonishes me, Sir, to find
this system approaching so near to perfection as it does... Thus I consent,
Sir, to this Constitution because I expect no better, and because I am not
sure, that it is not the best._ [0]

He means that the Constitution will continue until no other form of government
but despotism is possible, not that it leads to despotism.

Also note that despotism and tyranny are not exactly the same form of
government (the main relevant difference is that despotism can be benevolent),
and that the distinction would have been more significant in Franklin's
time.[1] I think that a more modern phrasing would be something like:

 _...the Constitution will be administered well for a while, and will last
until the country becomes so corrupt that only a despot could maintain order._

[0]
[http://www.usconstitution.net/franklin.html](http://www.usconstitution.net/franklin.html)

[1]
[http://www.differencebetween.net/miscellaneous/politics/what...](http://www.differencebetween.net/miscellaneous/politics/what-
is-the-difference-between-tyranny-and-despotism/)

edit: formatting

