This week we “celebrated” a second tier holiday known as Constitution Day. It memorializes the signing of our government’s charter. This year as the day passed on social media and in the pundit sector of the news we saw the predictable and indeed even inevitable collection of silly misplaced attacks on the document and the equally silly rebuttals of its defenders. This seemed to me however an excellent opportunity to talk about my own views on the United States Constitution, whats wrong with it, whats not wrong with it, how it can be improved, and ultimately what it really does do well.
Let’s take these as my introduction presented them shall we? What is wrong with the United States Constitution? There are almost as many answers to this question as there are people who would feel the need to answer and respond to it. Broadly speaking the single most common criticism and one that I also ascribe to is that as much as it did to limit the central government’s power it left enough assumed by the thinkers and writers of the day that the federal power has bled through and usurped the states. Much of this bleed through has been resultant from creative legal thinking in the courts and the legislative sessions.
We see these abuses in clauses like authorizing it to promote the general welfare and regulating interstate commerce. These may have seemed reasonable in their day. These two specific examples are predicated on a couple of assumptions though. For instance, the definition of the word promote itself gives no explicit authorization to tax, spend, and regulate the states into specific behavior. The second example, in the era of the American founding it might have been entirely reasonable to say that perhaps the federal government shouldn’t allow the states to start trade wars with each other. This has since been used to stretch the definition of what exactly interstate is and thoroughly regulate almost all commerce.
We also see this with things like the judiciary. It was given almost no explicit power in the constitution. Well for this reason it was weaponized almost immediately and grew assuming for itself powers that it was not given but not banned from taking either.
There are many more things that we could criticize it for allowing for failing to disallow. We should also make a point however to celebrate things that it does in fact do well. it is not easy to pass legislation in the United States congress and it never has been. Our system is set up in such a way that it is nearly impossible unless you have a great amount of consensus from across a huge geographic swath. Bills must pass to legislative houses that have very different interests in everything that is presented before them. Additionally For as much as the federal government has done to erode federalism you will see that there is still such a thing. The states with sufficient political capital can and do turn down bribes from the federal government. It is also not uncommon to see the states sue the federal government.
There is I think several clear cut changes that can be made yet today to improve this document. If I were asked I think there are several edits we could make under its own amendment process to strengthen it and make it an even more freedom friendly document. Just as a general gripe, the income tax amendment should be repealed. In addition to giving every individual that much more freedom this would also force the federal government to whither and starve itself back down to a potentially decent size. The direct election of senators should also be repealed. This was an ode to an overwhelming wave of populism and centralization and has not worked out. The senators were not initially beholden to the whims of the voters, but rather to state government. This made the senators the voices of the state governments in the legislature, this is something desperately needed today.
I have also written previously and plan to eventually write more about the need to reign in the judiciary. This is something that could easily be accomplished by using hind sight to flesh out and carve a clear role and powers for the courts and allow them nothing else. Finally it is not unreasonable that we consider entirely striking the congress’s ability to regulate interstate commerce and instead rely on the state’s to realize the benefits of maintaining free trade with each other. Many people also argue for term limits. I happen to be against this, it removes agency and the decision making of constituents. We should however remove the incentives to serve a career in congress with a low, hard capped salary and disallow the raising of it. This and other measures could potentially serve as effective term limits without banning those very few who actually do the work of their people with a servant’s heart.
Ultimately I think the Constitution receives a lot of unreasonable hate from lovers of freedom. It has enabled us to be one of, if not the most free nation in the world today in a practical sense. It is also in my mind one of the greatest theoretical tracts in the history of political theory. We should appreciate this as the culmination of enlightenment political theory. It was debated and written by a collection of what were some of the greatest thinkers of the enlightenment and indeed of all time. Maybe we shouldn’t respect it anymore as a an actual governmental charter, but we would be foolish to dismiss this as a work of philosophy. Respect it, even if you don’t ascribe to it anymore.