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 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.
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.
> 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.
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.
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.
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.
> 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.
>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.
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?
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.
> 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.
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?
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?
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.
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.
> 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.
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.
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.
Sounds like the constitutional version of popular JavaScript frameworks which quickly outgrow their intended scope and that nobody is ever fully satisfied with
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
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.
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.
You don't think academics are constantly comparing the real world utilization of constitutional forms...? Allow me to introduce to you, 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.
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).
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.
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 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.
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:
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:
>* 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.
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).
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.
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?
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.
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.
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.
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
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.
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).
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.
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.)