This is…I don’t know if it’s going to be a post or a series of posts or even something that eventually turns into a book. I’m going to be writing about changes the USA might make to its constitution, laws, and customs in order to “form a more perfect Union.” I am going to be writing about both small changes that would make significant improvements – patches – and large changes that seem to be called for because the world has changed since the 18th century. After patches there would still be three branches of government, elections, much of the machinery of governance we are familiar with, but I hope there would be greater justice and less difficulty in governance. After large changes our government and social order might be quite different, but I hope it would be more just and better able to respond to a changed world.

It is unlikely that these changes will be implemented any time soon – amending the Constitution is hard. Why write this then? For one thing, I hope it will shine a light on the problems we face. Many people tend to blame an amorphous “government” for the failings of US governance. I want to show that these are problems with a particular history and structure that can be understood and addressed. Instead of despair, I hope to offer a hard but possible path.

For another, I want to offer some tools that we can use to evaluate the work of governance, to clarify what is failing and how. And, perhaps, eventually this will lead to reforms. I am skeptical of grand schemes of designing governments and organizing society; I do not believe there is any way to know what the best form of a human society would be and in any event that would change over time as the people who made up society changed. I do not believe we know enough to devise systems that will accommodate the whole range of existing human psychologies, and mathematical philosophy teaches us that some problems are beyond complete solutions. And, finally, as history shows, the unpredictability of the human response to design renders all grand theories of social behavior invalid; political system designs, like the design of any other system that interacts with humans, must be tested in practice by people working with the system. Hence, simple ideas, subject to test and revision. As I have said before, “bicycles, not tanks.”

Patches: Historical Roots of the Problems

A Democracy, not a Republic

Since reading Gordon S. Wood’s The Radicalism of the American Revolution, I have been fond of saying that the Founders aimed at a republic, but created a democracy. The founders of the United States, building on the ideals of Roman social critics, devised a system of governance that they intended to be operated by far-seeing men (definitely men) with goals of freedom and justice and the good of the whole, as they saw themselves. They might have done better to include women. But they did not, and instead the system was overtaken by the small merchants and craftsmen who each pursued their personal and local interests. This predominance persists to this day. In his time, Marx named that group the petite bourgeoisie. In our time, they are the threatened group that wants to “make America great again” – not the working class but the people who direct them, small business people, managers, and professionals.

The modern political party was then invented by Martin van Buren, who used it to elect first Andrew Jackson and then himself to the Presidency. This made hash of the remaining structure of the Constitution and the economic order of the young nation. Jackson, a cruel man, formalized and extended the ethnic cleansing of the southeastern United States, deporting indigenous people to the further west. Beset by crank economic theories, he destroyed the Bank of the United States, destabilizing the paper currency for three generations, which ensured that economic growth depended on a fixed supply of gold – an economic denial of service attack. On the last day of his Presidency, he recognized the slaveholding Texas Republic.

Following the transformation of the Democratic-Republican Party into the modern Democratic party, the opposition party, the Whigs, modernized, and the two-party system emerged in the United States. This made the provisions of the Constitution that depended on supermajorities – provisions that allowed for removal of officials and amendment of the Constitution – dead letters; in a two-party system assembling a supermajority is near-impossible. This was exacerbated by opponents of President Jackson, who formalized the Senate filibuster.

Federal, state, and local governments then froze into a state of deadlock, punctuated by periods of rapid change when the problems of rigid governance became insuperable. The most extreme of these periods during the 19th century was the Civil War, but such crises occur over and over in US history; one is occurring now.

Judicial Appointments

Alexander Hamilton, in Federalist 78:

Upon the whole there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behaviour as the tenure of their judicial offices in point of duration

And, indeed, in the text of the Constitution, article III, section 1:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

But this is entirely broken down by a deadlocked legislature–who is to decide what is “good behaviour” and how are they to enforce their will?

Also in Federalist 78:

Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislative not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

There had never been an independent judiciary before, so Hamilton may perhaps be forgiven this line of thinking. It did not occur to him that the desire for moral justification is a force in human nature. Both legislature and executive turned to the courts for moral rationales for their actions. Nor did Hamilton foresee the alliance between executive harshness and the cruel zeal of bad judges. And, finally, the weakness of the judiciary tends to appear at the worst possible moments. In Worcester v. Georgia (1832), the Court ruled that Georgia had no authority to deport the Cherokee. President Andrew Jackson (remember him?) ignored the Court’s ruling, and proceeded with his program of ethnic cleansing.

The Judiciary in Practice

It was, usually, a reactionary, racist, anti-labor, pro-business institution. The Roberts Court is much more typical of the Supreme Court in history than the Warren Court.

Writing before the Warren Court, in 1942 liberal historian Henry Steele Commager gave a series of lectures at the University of Virginia, later published as a short book under the title Majority Rule and Minority Rights. It must have taken some courage to give those lectures at the school which Thomas Jefferson founded, a center then of racist thought. The second section of the book, “Democracy and Judicial Review,” is a nearly 30 page review of reactionary decisions by the Court. Towards the end of the section he summarizes:

This is the record. It is familiar enough to students of our constitutional law; less familiar, perhaps, to the layman who, not unnaturally, supposes the court continuously intervening to protect fundamental rights of life, liberty, and property from congressional assault. It discloses not a single case, in a century and a half, where the Supreme Court has protected freedom of speech, press, assembly, or petition against congressional attack. It reveals no instance (with the possible exception of the dubious Wong Wing case) where the court has intervened on behalf of the underprivileged—the Negro, the alien, women, children, workers, tenant- farmers. It reveals, on the contrary, that the court has effectively intervened again and again to defeat congressional efforts to free slaves, guarantee civil rights to Negroes, to protect workingmen, outlaw child labor, assist hard-pressed farmers, and to democratize the tax system. From this analysis the Congress, and not the courts, emerges as the instrument for the realization of the guarantees of the bill of rights.

Commager went on to make an argument for majority rule, which of course has its own problems. But for many years, the weakness of the judiciary could be counted on to appear at the worst possible moments

Constitutional Patches

With this history in mind, let us proceed to what changes we might make in the Constitution to repair some of these deficiencies. As I wrote a year ago:

“Surely it would be better if the legislature legislated as was intended, the executive executed that legislation, and the courts made decisions based on it?”

Patches: Abandon Supermajorities

Supermajority requirements in Congress

The Constitution requires a two-thirds supermajority to: remove a federal official (including judges), expel a member of Congress,and remove a President. Overriding a Presidential veto requires two-thirds of the House and Senate. House and Senate rules require a two-thirds supermajority to suspend the rules of debate and voting. Senate rules require a three-fifths supermajority to end debate. Over a year ago, I wrote a critique of supermajority legislative requirements in a partisan system; much of that seems to me still valid, so here’s some of it again:

The supermajority of the Senate filibuster, which is not even part of the constitution, but a rule adopted by the Senate, has made deadlock on any controversial issue the norm of the U.S. Congress. This has made for all manner of mischief. It protected Jim Crow for nearly a century, as well as preventing the passage of anti-lynching legislation. The overall effect of the supermajority requirement of the filibuster leads to Congress ceding power to the Presidency and the Supreme Court, both of which have become far too powerful.
The constitutional supermajority requirements on expulsion of House and Senate members make it near-impossible to expel even members of the poorest character. Thus, people of appalling character remain in both houses.
It also makes hash of the legal system. Until the mid-20th century, the Supreme Court could be relied on to trash any legislation that was too democratic. Liberals applauded the liberal Court of the mid-20ᵗʰ century. Now conservatives applaud the capricious radical-right Roberts Court of the 21ˢᵗ. We end up with a tortured series of decisions based on complicated interpretations of law while the legislature deadlocks on every controversial issue.

The Supermajority and Constitutional Amendments

The most difficult supermajority requirements are those that restrict amendments to the Constitution. Amending the Constitution requires either a two-thirds majority of Congress or a convention called by two-thirds of the states, and then ratification by three-quarters of the states. This is very difficult. The difficulty of amending the constitution protected slavery for a near century. While in theory some retardation in changes to fundamental law is sensible, in practice that retardation seems to operate in favor of the harshest, most unethical law.

In addition, the difficulty of amendment leads to many legislators and jurists treating the Constitution as a sacred text, something that none of the Founders expected. It especially would have horrified Jefferson, who felt that Constitutions ought to be rewritten every generation or so. Commager quotes Jefferson’s July 1816 letter to Samuel Kercheval:

Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us … avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous and well-meaning counsels. And lastly, let us provide in our Constitution for its revision at stated periods. What these periods should be, nature herself indicates … Each generation is as independent of the one preceding, as that was of all which had gone before. It has, then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness … and it is for the peace and good of mankind that a solemn opportunity of doing this every nineteen or twenty years should be provided by the Constitution.

This whole business of minutely interpreting the text of the constitution, so as to winkle out the intention of a document that was the result of compromise, of guessing at the intentions of the Founders, sometime in direct conflict with their intentions stated in writing, of guessing at what the Founders would have done – is entirely in conflict with how the Founders thought, and what they would have done: they solved the problems before them as best they knew, based on their civic republican theories of government, and expected their successors to do the same.

Voting

Who may vote?

The authors of the Constitution imagined only a limited franchise – that of white men of property. Even at the time, this was controversial – Thomas Paine, notably, argued publicly for a universal manhood franchise (and privately for enfranchising women and blacks as well.) But his view did not prevail. White male suffrage was expanded starting in 1791, with Vermont admitted to the union. The 1828 Presidential election was the first in which most white men could vote, electing Andrew Jackson President, who solidly won both the popular and electoral college vote.

This is probably the area where the authors of the Constitution were most distant from modern political thought. Hamilton and Madison were aristocrats, though not formally titled, and felt that the masses could not govern well, and would not do so. They had classical history to support them and indeed panic and delusions of persecution have proven powerful forces in US democracy. Where they failed is in recognizing their own blind spots. They were also (and said repeatedly) very concerned about the preservation of their property, much of which was enslaved people. There is, in their writing about property, a pervasive fear of loss – both by devaluation of currency (the general public preferred paper currency to gold, and paper currency flat terrified those aristocrats) and of legislative action to take their property. This they inherited from the aristocratic order of England, which itself was a response to a subsistence economy. Such an economy is zero-sum: any increase in one person’s wealth comes from a decrease in another’s, so wealth is to be hoarded.

The Electoral College

The Electoral College was a compromise between factions that felt that direct popular election of the President would be enormously subject to demagoguery (and, indeed, after Trump, and such figures as Reagan and Harding, who is to say they were wrong?) who therefore supported Congress electing the President, and the faction that wanted to see direct popular election of the President. (Besides, the southern states were not going to be giving the vote to enslaved people. Instead three-fifths of the votes of enslaved people were apportioned to their owners.) The electors, it was believed, would vote independently and wisely, that there would be many choices with no clear majority, and it was expected that the House of Representatives would decide most Presidential elections.

With the emergence of the modern political party, these predictions of behavior were all proven wrong. The two parties focused electoral votes in their two Presidential candidates. The far-reaching visionaries that civic republicans imagined as electors turned out to be scarce on the ground. The choice of electors was controlled by state legislators and a winner-take-all voting system was adopted. The unsettling result is that US Presidents are elected neither by majority nor by far-seeing electors. Notably and unhappily, the winner-take-all voting system buries the votes of Blacks and other minority groups.

Patch: Establish the Right to Vote in the Constitution

To state what should be obvious: all adult citizens should have the right to vote. We have the Fifteenth Amendment, which states, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” It didn’t go far enough; women still couldn’t vote, nor could natives, and states were allowed to forbid felons to vote; Southern states then began a policy of arresting and convicting Blacks of felonies, as well as harassing Black voters in other ways. The second section of the Fifteenth Amendment said, “The Congress shall have power to enforce this article by appropriate legislation” but a series of arbitrary Supreme Court decisions and the Senate filibuster kept that from implementation for nearly a century.

So: all adult citizens have the right to vote. Furthermore, that vote must be fairly apportioned – gerrymanders forbidden.

Patch: Abolish the Electoral College

The Electoral College has become a blot on American democracy so abolish the electoral college.

Beyond Patching: Altering the Institution of the Presidency

The Presidency, even before the emergence of the modern administrative state, is too much like a kingship. Historically, most Presidents have been at best mediocrities. The popular vote, as we have seen time and time again, is perfectly willing to elect incompetents to the job. Finally, the job has grown too large for a single person. It would probably be best to replace the chief executive with an executive council, picked by some process other than direct popular vote.

But that is for the future.

Congressional Apportionment

Here we come to issues that seem to be beyond patching but instead require major reforms.

The House of Representatives

House districts are too large. A single House representative represents a median of approximately 760,000 people. At that scale, almost no-one can know their representatives, and minorities in a district become invisible. Doubling the size of the House would improve matters, as well as resolve some of the odder inequities of the system. Each district would still represent around 380,000 people; that’s perhaps not enough improvement to make it worthwhile.

An early failed amendment to the constitution would have limited the number of people in a House district to around 40,000, which would lead to about 6,500 representatives – a large and perhaps unwieldy number. But that is well beyond a patch.

The Senate

The original colonies were widely separated, and in 1789 when the Constitution was ratified, rail transport was only beginning to emerge, and the electric telegraph was not even dreamt of. Local governance was, for most places, the only governance. So, in that time, there was a certain amount of sense in treating the states as separate polities (though this also protected slavery), unified only by a limited Federal government. But that time is long gone.

Hugely populous California, Texas, Florida, New York, Pennsylvania, and Illinois get equal representation in the Senate with the sparsely populated Dakotas, Alaska, Vermont, and Wyoming. In the Senate, the vote of a citizen of Wyoming counts for nearly 70 times the vote of a citizen of California. Conceivably, Senate votes could be counted proportional to the population of states but, again, that is well beyond a patch.

Beyond Patching: Congressional Apportionment

Some serious thought into how a national legislature is to be structured for such a large population, well beyond the designs of the founders, is called for. I don’t have simple ideas here; this is a difficult problem.

Patches: Limit the Presidential Pardon Power

The pardon is a valuable check on judicial and police abuses, a way for bad decisions to be rectified. Unfortunately, the pardon power has also been abused, most egregiously by President Andrew Johnson who pardoned the Confederate traitors en masse, paving the way for a wave of anti-Black terrorism and the ultimate creation of Jim Crow. Likewise, President Gerald Ford pardoned the traitor Richard Nixon, and President GHW Bush pardoned the law breakers and alleged traitors of Iran-Contra. One possible nadir of the use of the pardon that has not yet been reached: former President Trump has discussed pardoning himself.

The pardon was never supposed to be a refuge of criminals and traitors. Limitations on it are necessary. I remain uncertain as to what those would be, but something, surely, can be devised; it is far too easy to pardon powerfully-connected lawbreakers and traitors.

Patches: Enable the Removal of Judges

It was never intended that Federal judges have lifetime appointments; that is a consequence of the emergence of the two-party system. Let judges be removed by a simple majority vote of both houses of Congress.

Patches: Limit Judicial Review

The Supreme Court has, over and over, rewritten laws to its taste. Liberals applauded the Court of the mid-20ᵗʰ century. Now conservatives applaud the capricious radical-right Roberts Court of the 21ˢᵗ. Again, I blame supermajority requirements in the Constitution which both vitiate Congressional action as a check on the Court and, at the same time, make appeals to the Court necessary, since Congress, especially the Senate, can be relied on to do what it does best: nothing.

Prospect

The above was written before the depth of corruption of the current Roberts Court was known. In the past week, it has emerged that one conservative justice is a bought person, two others have allegedly accepted gifts that look very much like bribes, and a fourth, a likely religious fanatic, was put in place by very large near-bribes. Of the remaining conservatives, one is apparently a crank raised to office well beyond their level of competence and the other is a credibly accused rapist. The need for reforms that allow their removal has rarely been more pressing.

Beyond that, I am seeing a great deal of commentary from the far left aiming at the entire rejection of the US system of government. “To be replaced with what?” is my general reaction to such arguments, and I have never seen a serious response. US democracy, flawed though it is, holds out the possibility of improvement.

1 comment:

The Blog FodderMay 12, 2023 at 8:43 PM
America has a big job ahead of it. Even maintaining some semblance of Democracy will be critical in 2024. Up to now, Canadian democracy has run more or less smoothly but Conservative governments in several provinces Saskatchewan, Alberta and Ontario being the major ones, are taking a leaf from American politics and creating laws that will attempt to bypass federal laws. Lawyering is suddenly looking up as a livelihood in Canada

Advice Unasked

Friday, May 5, 2023

Patching the Constitution

Introduction