What If the Constitution Has Always Been a Hot Mess?

Every society uses history as a tool to rationalize its actions and institutions, to proclaim its beneficence, efficacy, and correctness.  Even cultures which elevate reason and its reliance upon objectivity have an easier time with, “this was great because…” than, “we shouldn’t have done that because…”. As Mark Twain put it, “The very ink with which history is written is merely fluid prejudice.” 

            So, like most other Americans, I came both to tacitly accept and to be able to rationally argue for the beneficence and correctness of the U.S. Constitution.  There is much that is great about it:  It was a first in world history, premising a government on a central, written law rather than having law follow from a government.  The Founders were wise to premise government on the inevitable corruption inspired by power.  It was clever of them to purpose-build Montesqueiu’s theory of the separation of powers into the structure and then to cement the power limitations with specific checks and balances between the branches (thanks to John Adams for taking those steps earlier in the first Massachusetts State Constitution).  It was brilliant to keep power diffused by federalizing, keeping the hands of the potentially most powerful government off of any domain that could be handled as well or better by smaller governments. 

We were taught in civics classes about all this, and any of us who went further in studying government (my own bachelors’ degree was from a political science department – though it was international studies, it contained a lot of U.S. political theory and history) read the Federalist, with all its marvelous arguments for the Constitution’s provisions, plus the surrounding works that informed the Founders, and all kinds of other things which incline us to reify rather than question the Constitution and the republic over which it is the guiding law.

          However, we get a more complete picture if we read recently produced histories and biographies with the most up-to-date sources by which we have come to a better knowledge of what went on in the Constitutional Convention.  This has been slow historical work - quite difficult - since the daily proceedings were confidential while they were happening.  It is far less certain than we were told in civics class that the rational arguments presented in the Federalist were the primary drivers of the outcome. They inform it, but the Constitution is just as much the result of bickering between states and class interests. The delegates seem often to have been committed only inasmuch as they perceived immediate benefits. They tended to reject anything that threatened their existing privileges or authority.  We ended up with a Constitution that had all the clever features named above, but which also has failed in many ways.  As ingenious as it is, it is also a sloppy, incomplete, and poor design.

For starters, the 3/5 Compromise undermined accurate representation of the people in the House of Representatives.  Without it, the Civil War might never have happened because the decisions of Congress between 1790 and 1860 would have been far more in the hands of the mid-Atlantic and northern states.  That being said, it is also likely that the Federalists would have remained in power in 1800, and movement to a more democratic version of the republic would have been stalled.  There are so many alternate timelines to contemplate! Sticking with what did happen, it was poor design not just because it condoned slavery, but because it created and thus justified a non-representative republic from the start.  Corrections to make the republic more representative of its people, more of a democracy, have come piecemeal since then.

The means of electing the President and Vice President had to be amended in 1804 because it was so poorly made. What remained from the original version, the electoral college (formatted as a sop to the slave states because of the 3/5 Compromise) continued to create many problems and solve few.  It was created for two reasons:

(1) As an attempt to repeat the power split between people and states that we see in our bicameral Congress.  Small state paranoia is the reason this concern arose, but the compromise position left the small states high and dry anyway, so it was pointless from that perspective.  Even allowing the discussion defied the fact that the President is the one nationally elected official with no necessary connection to states or their powers.  There was no reason to balance out the popular will with state concerns for that office.

(2) In 1790, no one could have envisioned a means to have a single, nationwide election that could be well regulated.  They were still using stagecoaches and sailing ships to transmit news.  That problem was solved within the next fifty years, thanks to the telegraph, though they could not have known that. But that begs the question: Why are we enduring inadequate design because, at the time it was made, it was the best they could do? It’s clumsy and has frequently undermined the will of the people. The electoral college distorted outcomes in 1796, 1800, 1825, 1837, 1860, 1876, 1888, 2000, and 2016, and three of those cases were viewed as crises. Why do we put up with it? The answer to that is, as it usually is for such questions, who benefits from it now.  Hint, it’s not you or me or most people.

Then there are the Constitution’s many omissions.  It leaves all the specifics of running the branches to develop by norm and precedent rather than codifying any of it.  They didn’t even specify the number of Supreme Court Justices.  The first Supreme Court was riding the national circuit themselves, judging national constitution-related cases directly.  The courts were expanded quickly, but why wasn’t some of that considered in Article I, section III in the first place?  The Founders could not have been so naïve as to believe that a few Supreme Court justices traveling around the country could be an effective judicial branch.  They just didn’t take time with it.  They left it a mess to be sorted later. We’ve had a variable number of Supreme Court justices and the authority of the courts has gone up and down depending upon the political circumstances of the times.  If you’re pro New Deal, you’re delighted that Roosevelt could single-handedly pack the lower courts and threaten to increase the size of the Supreme Court, but how delighted would you be if Trump did it?  If the Constitution had said there would be nine of them who saw cases only on appeal from a set of lower courts in the first place, the power of the court would have been far more stable from the outset.  With a more considered, detailed Article III, it is also likely that the question of judicial review, a vast legislative power check decided by the Court itself under John Marshall, would have come up and been decided within the Constitution one way or the other.  No one has every positively legislated that the court actually has this power.

The omissions problem is not limited to Article III.  Article II is far too sketchy as well.  The composition of the executive branch other than President and Vice President, are left out entirely.  It was Washington’s choice to have the departments and cabinet officers that he did, and their authority vis a vis the President was uncertain once Adams became the first non-Washington president because again, the Constitution doesn’t set it up at all.  The entire executive branch is run on precedent, which any President can ignore.  Some Presidents have, usually to seize more power for their personal or party’s agenda. (i.e. Jackson, Reagan, Trump).

The legislature is similarly untreated.  While the Constitution does go so far as to specify the movement of bills through both of Congress’ houses to become law, it affords no language to the rules governing Congress’ daily operation.  The seniority and party-majority way of running things are norms, not Constitutional imperatives.  Both of those norms have gummed things up and facilitated corruption far more than they have facilitated wise legislating.  The structure was already designed on purpose to slow legislation. They wanted to prevent the central government from being too energetic unless there was unified will of people and states to a purpose.  That was clever.  But the additional constraints of seniority and majority party rule turn it from molasses into amber unless one party gets so much advantage that it pursues its own agenda with no constraint or consideration of any wisdom from the opposition (think Reconstruction, Roosevelt’s New Deal, Reagan’s first term, Trump’s second term).

Perhaps the biggest omission is lack of consideration of parties.  Madison wrote at length that the structure counters the “spirit of faction” with the elements already included.  That was a dreadful underestimation of said spirit.  The fact that it wasn’t five years into the first administration that Madison himself was deeply partisan illustrates how wrong they got it.  It’s not as if they couldn’t have imagined it.  The distance between the Hamilton and Madison camps’ positions when making the Constitution practically screamed about the divisions to come.  How could they imagine for a minute that their different interpretations of what would work best would not persist once the thing was operating?  Or that their own fierce devotions to the success of the endeavor wouldn’t cause them bitter division and strife?  The Constitution could have included specific safeguards which would have affected how parties would end up forming and operating. 

As a random example, they could have specified that no candidate could run for President under the banner, platform, or funding of an organized faction (party).  They could have disconnected the one national office formally from the inevitable splits in national opinions (Washington, for one, would have been thankful for such a reprieve).  Of course, Presidents might favor one party more than others anyway, but imagine the difference in party politics if the President could not function as the head of one or explicitly promote its platform. The very assumptions of the role of the executive would likely have stayed closer to what our first Presidents had.  Even Jefferson, the head of one of the emergent parties, abandoned his partisan stances and role once he was President because he saw it as a conflict of interest (say what we will of the hypocrisies of that generation of rich, white, male leaders, they did carry a strong sense of honor to their jobs).  The Constitution could have made that a rule rather than a precedent that faded by the Civil War and utterly disappeared after it.

In fact, the Constitution could have prevented the President explicitly from any hand in legislative programs other than the veto power, which could have been expressed in such as way as to promote its use primarily for executive practicality.  A President would mostly use the veto when they believed it was simply impossible for the executive to carry out the suggested legislation and only occasionally use it when it was clear that the law was against the will of the people (what the check was there to do). 

Instead, today’s Presidents run on legislative promises.  They can do this because they exert executive power to lean on Congress to pass the programs the President favors.  The President ( I repeat) is supposed to be the executive,not a legislator.  The founders structured the veto as a check against legislative excess, not as a means for the President to become a legislative force.  But they left it inchoate, unstructured, so it could be wielded that way.  With the other normative powers over the application of funds in departments (again, important features ignored by our brief Constitution), the President accrued more legislative bullying power.  In effect, the separation of powers has long been broken.  Executives seized legislative initiative in the nineteenth century.  That’s how long it wasn’t functioning as designed. 

Perhaps this has been for the best in many cases, since the partisan nature and seniority rules of Congress have stopped it from effectively legislating.  Perhaps without the evolution of President as legislator in chief, lawmaking would have collapsed long ago.  But that’s occasionally happy accident, not great design.  The design is sloppy and did not work as it was supposed to.

Even the Bill of Rights is a mess.  Their careful drafts were not careful enough.  The first, obvious example is the Second Amendment. If you think that the wealthy and powerful Founders really thought the masses of people should be armed with weapons sufficient to rebel against their leaders whenever they felt like it, you’re being unrealistic.  Jefferson was quite radical in taking a position somewhat near to that, but he was off in France as ambassador, not present for making the Constitution.  The states which feared the power of the new national government certainly believed that states should be able to throw off the national government if it decayed into tyranny.  They formed no national military (wisely – Hamilton attempted to make one anyway a few years later exactly to suppress the opposition party) and reserved the right of the states to remain armed.  That’s what the first clause is about, and it qualifies the second clause about the right to keep and bear arms: “A well regulated militia being necessary to the security of a free state…”. They meant local militias governed by the state, the norm before and during the Revolution.  They could not see the need for more restraining language than this.  They could phrase it that way and let everyone have guns for hunting and militia purposes without feeling any threat to the national government or society because of the firearms technology of the time.  Effective military use of muskets requires a lot of centralized organization.  Even with a rifled musket, you can only shoot one person before everyone else can get out of the way and people can apprehend the shooter.  But again, leaving it as is and interpreting it so poorly is accepting poor design simply because they could not have known better in the moment.  Because people have seized on their lack of foresight and more careful phrasing, any one person can, without any regulation whatsoever, have a personal arsenal sufficient to overthrow a small country.  Any person can publicly carry around a weapon with which they can quickly kill lots of the people around them.  That’s protected because the Founders didn’t say what they meant with greater precision and didn’t see the need to because of their particular moment in time.  That’s no excuse to keep a hot mess.

But that’s not the only one of our rights which is insufficiently clarified.  The freedom of religion is indeed intended to separate church from state entirely.  The state has no business telling you what faith you should or shouldn’t have or how you practice it, but also your religious beliefs are not permitted to have any bearing on the laws of the land, the policies of government, or the narratives in public spaces facilitated by government, or any other admixture of a religion with government influence.  They should have stated this in far more direct and certain terms, because it is clearly what they meant based upon their subsequent writings about its meaning.

The only economic right which they perceived was the right to property.  That is, again, a result of their time, place, and social standing.  Adam Smith’s Wealth of Nations was the most up-to-date economic view available to Enlightenment thinkers, so we can pardon them for not considering economic rights.  The political natural right to life stated in the Declaration suggests the possibility that the government cannot allow its citizens to starve to death when it could do otherwise, but the only parts of the Constitution that even imply that the government could have any economic role in people’s lives are in the preamble and Article 1, section 8, which say that the government has a role in the “welfare” of the people (thus the name of our social safety net programs).  It’s so vague as to be laughable by modern standards. 

It's another instance where the Founders not perceiving the problem doesn’t make it great design, just understandable because it’s archaic.  If a software company today felt it should send you its products on floppy discs, it would be similarly ludicrous.  At the time the technology was current, it was understandable.  It’s ridiculous today.  By today’s standards, the Constitution is utterly remiss in not explicitly addressing economic rights.  The vital part that is missed in not addressing them is that some economic rights are necessary to insure the political ones.  Free expression and assembly does you little good if you have no time or wherewithal to use them.  For that matter, even if you do use them, your political voice is a whisper, while a billionaire’s or corporation’s voice is a megaphone-enhanced bellow.  Any billionaire is just a single citizen like you.  Even when you weigh the expression of your voice in unity with others in public interest groups, it is tiny compared to the voice of the opposing private interests funded by the .01%.  That inequity in voice is a real problem.

Similarly, the due process rights and even habeus corpus mean very little if you have to be reliant upon the same state to defend you as is prosecuting you.  Poor people get convicted, rich people tend not to be – proof enough of that truism (nothing against underpaid, overworked public defenders, by the way, but the state underpays and overworks them exactly because it would rather win its cases against defendants.  It makes the police happier, the privileged people happier, and keeps poor and/or brown people “in their place” better). These differences have been magnified by the changes since the Constitution was written, but they existed then as well.  Imagine if the Founders had included an amendment in the Bill of Rights that would have countered for the discrepancies in political power created by economic differences even in their own era.  They would not have tried anything like that because they mostly assumed the Great Chain of Being and were satisfied with their position on top of it, but think of the differences in our history that might have resulted from even an attempt to equalize political power between social classes within our assumed rights. Leaving it unaddressed was poor design even then.

There is way more we could detail, but the argument here is that, whether from the limitations of their time and place, their willful abandonment of what was better to favor what suited them, or whatever else caused it, they created a hot mess.  It is possible that our successes as a nation have been as much in spite of our Constitution as they have been because of it.  As ingenious as its elements are, it is arguable that it is thoroughly inadequate to run a nation-state and wasn’t even very well designed for the early years of the Republic.  It is not sacred even though we tend to hold it so.  It is an instrument of our governance, an attempt to structure a state that could be true to the ideals of the Declaration of Independence.  To the extent that it fails to do so, we should be willing to renovate or replace it as necessary.

For comparison, the French, just as fiercely dedicated to political rights as are we, are on their 5^th constitution. Americans who know that tend to scoff at the French for needing five over the past two hundred and fifty years (and having them be interrupted by various Napoleon’s and other pretend monarchs).  However, their 5^th republic is almost 70 years old at this point and seems to be working pretty darn well.  Each subsequent constitution responded to the currents of the times in which they were written, but they also each sought to improve upon the failures of the prior ones: They’ve been willing to change in order to better serve democratic ideals, and to do so, the alterations make the documents ever more extensive and detailed.  The current French constitution has 16 categories (called Titles, equivalent to our Articles) while we have 6 (there are 7, but the last one is just about approving the document).  Each of their Titles is divided into articles (equivalent to our sections), of which there are 89 compared to our 21.  It is a far more technocratic, detailed document, precisely because of the kinds of shortcomings that I have described above in ours. 

Of course, size and extend of Constitution, or even having a written one at all, may not be a key to success.  On the other end, the British have no single, written Constitution and their system seems to operate well on the labyrinthian combination of precedent and adaptation which have led them to where they are.  This would be a much harder model to duplicate since it is so dependent upon the organic growth of law and procedure within their state. 

Whatever we choose to do, we are in desperate need of doing something. The Constitution needs to be entirely renovated or replaced so that it is a foundation which can undergird a strong, thoroughly democratic republic for the next two centuries at least.