What worked well 224 years ago is no longer the best we can do.
November 5, 2013 7:56 PM Subscribe
According to researchers who analyzed all 729 constitutions adopted between 1946 and 2006, the U.S. Constitution is rarely used as a model. What's more, "the American example is being rejected to an even greater extent by America's allies than by the global community at large"...The Atlantic's Alex Seitz-Wald makes a case against the U.S. Constitution: The U.S. Needs a New Constitution—Here's How to Write It.
"There are about 30 countries, mostly in Latin America, that have adopted American-style systems. All of them, without exception, have succumbed to...constitutional crisis[es]—your full range of political violence, revolution, coup, and worse. But well short of war, you can end up in a state of "crisis governance," he writes. "President and house may merely indulge a taste for endless backbiting, mutual recrimination, and partisan deadlock. Worse yet, the contending powers may use the constitutional tools at their disposal to make life miserable for each other: The house will harass the executive, and the president will engage in unilateral action whenever he can get away with it." [Juan Linz] wrote that almost a decade and a half ago, long before anyone had heard of Barack Obama, let alone the Tea Party.
the U.S. Constitution is rarely used as a model.
That's simplistic. It's true that the parliamentary system tends to get used more often, but there are aspects of the US system that have become very common.
In particular, the concept of a Supreme Court with the power to overrule laws for constitutional reasons was an American invention which is now very common. Indeed, the entire idea of a judiciary as an independent branch of the government balancing against legislative and executive was an American innovation.
And the idea of a constitutionally-protected freedom of speech is an American innovation that's now quite common. (At least in the text of those modern constitutions. The extent to which the practice follows the text varies widely.)
posted by Chocolate Pickle at 8:15 PM on November 5, 2013 [7 favorites]
That's simplistic. It's true that the parliamentary system tends to get used more often, but there are aspects of the US system that have become very common.
In particular, the concept of a Supreme Court with the power to overrule laws for constitutional reasons was an American invention which is now very common. Indeed, the entire idea of a judiciary as an independent branch of the government balancing against legislative and executive was an American innovation.
And the idea of a constitutionally-protected freedom of speech is an American innovation that's now quite common. (At least in the text of those modern constitutions. The extent to which the practice follows the text varies widely.)
posted by Chocolate Pickle at 8:15 PM on November 5, 2013 [7 favorites]
Incidentally - the post actually misattributes the quote in its main body. That quote is not from Juan Linz; it's from Bruce Ackerman. It might be a good idea to have it corrected, if possible.
posted by koeselitz at 8:25 PM on November 5, 2013
posted by koeselitz at 8:25 PM on November 5, 2013
The U.S. Constitution does not expressly grant the Supreme Court the power to overrule laws for constitutional reasons. The Court essentially granted itself that power in Marbury v. Madison, on the basis that determining the constitutionality of a law was (or so Justice Marshall asserted) the only way in which the Court could fulfill its express Constitutional mandate of deciding a particular case. As someone who first studied philosophy (M.A. '91) before moving to the law, in law school I was continually flabbergasted by the circularity inherent in so much jurisprudential reasoning. I learned to just shut up about that stuff.
posted by JimInLoganSquare at 8:49 PM on November 5, 2013 [23 favorites]
posted by JimInLoganSquare at 8:49 PM on November 5, 2013 [23 favorites]
Not much in the way of a path forward. The best suggestion seems to be "hold a Constitutional Convention." But that would probably be a hot mess.
In fact, the last one didn't go that well either; arguably the only reason why the Convention of 1787 produced anything worthwhile at all was because George Washington was still around to provide leadership and lend some much-needed gravitas to what would have probably otherwise become (and arguably at times was) a lot of squabbling.
Plus, the Constitution that came out of the Convention was seriously flawed, despite being the best that could be produced at the time. The Three-Fifths Compromise and general plastering-over the slavery issue is probably the biggest issue, since you can trace a pretty direct line from there to the Civil War.
One is left to wonder what today's equivalent of the Three-Fifths Compromise would be. By opening up the Constitution to modification -- and there is little reason to think (and no language in the current Constitution to suggest) that a Convention would be limited by subject matter -- we are making ourselves vulnerable to new flaws as well as improvements, and those flaws could be extremely difficult to fix. Rather than resolving ideological disputes, a successful Convention would probably only entrench today's in law.
Plus, just to look at a specific "problem" raised in the article, there's little to be gained by many states (or their residents) in any Convention which has as a primary aim the dilution of the Senate's 2-per-state composition. Why would any of the less-populated states bother to show up, or vote in favor of a Convention with that aim in the first place? The requirements for a new Convention would involve a lot of states who'd lose out on a Senatorial rebalancing to be in favor of it; it seems unlikely that so many states would choose to slit their own throats so readily.
The whole thing seems like a high-stakes gamble. Sure, a new Convention could move the US towards some sort of Westminsterian parlimentary democracy, if you're into that sort of thing. But it could also open up the hood to the sort of folks who think the main problem with Sharia Law is that it isn't Jesusy enough. And if the problem is that such folks are gaming and co-opting our current government, what's to say they can't do the same thing to a Convention? If we were seeing serious political instability -- and I don't mean a government shutdown; I mean generals being executed for treason for coup attempts -- then we might need to try it, the hell with the risks. But I don't see the possible upsides as worth the stygian-doesn't-even-suffice downside risk.
posted by Kadin2048 at 8:51 PM on November 5, 2013 [34 favorites]
In fact, the last one didn't go that well either; arguably the only reason why the Convention of 1787 produced anything worthwhile at all was because George Washington was still around to provide leadership and lend some much-needed gravitas to what would have probably otherwise become (and arguably at times was) a lot of squabbling.
Plus, the Constitution that came out of the Convention was seriously flawed, despite being the best that could be produced at the time. The Three-Fifths Compromise and general plastering-over the slavery issue is probably the biggest issue, since you can trace a pretty direct line from there to the Civil War.
One is left to wonder what today's equivalent of the Three-Fifths Compromise would be. By opening up the Constitution to modification -- and there is little reason to think (and no language in the current Constitution to suggest) that a Convention would be limited by subject matter -- we are making ourselves vulnerable to new flaws as well as improvements, and those flaws could be extremely difficult to fix. Rather than resolving ideological disputes, a successful Convention would probably only entrench today's in law.
Plus, just to look at a specific "problem" raised in the article, there's little to be gained by many states (or their residents) in any Convention which has as a primary aim the dilution of the Senate's 2-per-state composition. Why would any of the less-populated states bother to show up, or vote in favor of a Convention with that aim in the first place? The requirements for a new Convention would involve a lot of states who'd lose out on a Senatorial rebalancing to be in favor of it; it seems unlikely that so many states would choose to slit their own throats so readily.
The whole thing seems like a high-stakes gamble. Sure, a new Convention could move the US towards some sort of Westminsterian parlimentary democracy, if you're into that sort of thing. But it could also open up the hood to the sort of folks who think the main problem with Sharia Law is that it isn't Jesusy enough. And if the problem is that such folks are gaming and co-opting our current government, what's to say they can't do the same thing to a Convention? If we were seeing serious political instability -- and I don't mean a government shutdown; I mean generals being executed for treason for coup attempts -- then we might need to try it, the hell with the risks. But I don't see the possible upsides as worth the stygian-doesn't-even-suffice downside risk.
posted by Kadin2048 at 8:51 PM on November 5, 2013 [34 favorites]
The idea of a new Constitution might be tempting but who would write it? Politicians don't appear terribly beholden to their constituents as it is. Would there be room for free speech in our current security climate? Would OSHA or the right to unionize find a place in a new constitutional framework? It just seems like writing a new Constitution would end up bringing out a lot of big interests who don't have the welfare of the American people in mind.
posted by JARED!!! at 8:53 PM on November 5, 2013 [5 favorites]
posted by JARED!!! at 8:53 PM on November 5, 2013 [5 favorites]
Considering our country's economy nearly got decimated and basic government functions (like transportation and food safety) ground to a halt because of brownshirts in the Tea Party, and a lot of government officials of all stripes are beholden to their corporate owners, maybe this is not a good time to redo our Constitution.
posted by Blazecock Pileon at 9:02 PM on November 5, 2013 [28 favorites]
posted by Blazecock Pileon at 9:02 PM on November 5, 2013 [28 favorites]
America's problems can be understood from Duverger's law. Ironically, the single vote that is allotted the American voter actually dictates the two party system. There is no logical justification for a single vote in a field of candidates, and it is actually a form of political fraud to champion a spoiler dilemma as a sincere choice. A solution would be rather simple and painless and requires no major changes. It simply allows the future voter to vote for a hypothetical runoff pair by choosing up to two candidates for the potential next round (because there are two spaces, therefore two votes allowed). But the next vote would be avoided if the leading candidate reaches a majority threshold, which as a process maintains party incentive to concentrate their efforts, but yet breaking the two-party mold.
posted by Brian B. at 9:05 PM on November 5, 2013 [3 favorites]
posted by Brian B. at 9:05 PM on November 5, 2013 [3 favorites]
The U.S. Constitution does not expressly grant the Supreme Court the power to overrule laws for constitutional reasons. The Court essentially granted itself that power in Marbury v. Madison, on the basis that determining the constitutionality of a law was (or so Justice Marshall asserted) the only way in which the Court could fulfill its express Constitutional mandate of deciding a particular case.
Had they not, then it would have created an infinite legitimacy loop on the Legislative side, where Congress is theoretically beholden to the Constitution but only to their own interpretation of it, meaning they could ignore it at will, rendering it meaningless. Since their power as a governing body comes from the Constitution, that's sort of a problem.
My take on Marbury is that it replaces a really bad flaw (unchecked positive legislative power) with an only moderately bad one (unchecked negative power to invalidate laws), and that in the net it's better to have the Supreme Court deciding the limits of its own power rather than letting Congress do so.
But the irony that I have always enjoyed is that Marbury established judicial review and arguably expanded the powers of the Court beyond those explicitly granted in the Constitution, in order to invalidate a law passed by Congress which had expanded the powers of the Court beyond those -- in the opinion of the Court -- beyond those explicitly granted in the Constitution.
posted by Kadin2048 at 9:07 PM on November 5, 2013 [8 favorites]
Had they not, then it would have created an infinite legitimacy loop on the Legislative side, where Congress is theoretically beholden to the Constitution but only to their own interpretation of it, meaning they could ignore it at will, rendering it meaningless. Since their power as a governing body comes from the Constitution, that's sort of a problem.
My take on Marbury is that it replaces a really bad flaw (unchecked positive legislative power) with an only moderately bad one (unchecked negative power to invalidate laws), and that in the net it's better to have the Supreme Court deciding the limits of its own power rather than letting Congress do so.
But the irony that I have always enjoyed is that Marbury established judicial review and arguably expanded the powers of the Court beyond those explicitly granted in the Constitution, in order to invalidate a law passed by Congress which had expanded the powers of the Court beyond those -- in the opinion of the Court -- beyond those explicitly granted in the Constitution.
posted by Kadin2048 at 9:07 PM on November 5, 2013 [8 favorites]
A new constitutional convention would be a windfall to the disaster capitalists....corporate personhood, corporate sovereignty, written right into the constitution.
Or of course, there's the fundamentalist Christian dominionists. 'Warpped in a flag and carrying a cross'.
Lastly, a constitutional convention would lead to civil war. The disgruntles losers of the convention would have no reason to conform with the system.
posted by LeRoienJaune at 9:09 PM on November 5, 2013 [10 favorites]
Or of course, there's the fundamentalist Christian dominionists. 'Warpped in a flag and carrying a cross'.
Lastly, a constitutional convention would lead to civil war. The disgruntles losers of the convention would have no reason to conform with the system.
posted by LeRoienJaune at 9:09 PM on November 5, 2013 [10 favorites]
koselitz- you are right, I didn't edit that very well. I didn't mean to be misleading, I just wanted to make it briefer. Here is the full context of that part, with the preceding paragraph for context:
posted by zardoz at 9:11 PM on November 5, 2013
As the famed Spanish political scientist Juan Linz wrote in an influential 1990 essay, dysfunction, trending toward constitutional breakdown, is baked into our DNA. Any system that gives equally strong claims of democratic legitimacy to both the legislature and the president, while also allowing each to be controlled by people with fundamentally different agendas, is doomed to fail. America has muddled through thus far by compromise, but what happens when the sides no longer wish to compromise? "No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people," Linz wrote.
"There are about 30 countries, mostly in Latin America, that have adopted American-style systems. All of them, without exception, have succumbed to the Linzian nightmare at one time or another, often repeatedly," according to Yale constitutional law professor Bruce Ackerman, who calls for a transition to a parliamentary system. By "Linzian nightmare," Ackerman means constitutional crisis—your full range of political violence, revolution, coup, and worse. But well short of war, you can end up in a state of "crisis governance," he writes. "President and house may merely indulge a taste for endless backbiting, mutual recrimination, and partisan deadlock. Worse yet, the contending powers may use the constitutional tools at their disposal to make life miserable for each other: The house will harass the executive, and the president will engage in unilateral action whenever he can get away with it." He wrote that almost a decade and a half ago, long before anyone had heard of Barack Obama, let alone the Tea Party.
Kadin2048: “Plus, the Constitution that came out of the Convention was seriously flawed, despite being the best that could be produced at the time. The Three-Fifths Compromise and general plastering-over the slavery issue is probably the biggest issue, since you can trace a pretty direct line from there to the Civil War.”
Well – while of course I agree that slavery is really an issue that the Constitution flatly refused to resolve (people on both sides of the issue figured they could wait it out) that alone does not convince me of the Constitution's flawed-ness. I am no exceptionalist by any stretch of the imagination, but it's insane how long that thing has lasted. We can compare it with some other failed constitutions, of which there are legions and legions. The idea that we could just replace it with a nicer one is a pipe dream that ignores the realities of constitution-making.
And really – this Atlantic article is utterly unconvincing. All of the "problems" are either by design or negligible. "Deadlock" is not necessarily a terrifying thing, and the author hasn't done much to convince us that there's some kind of constitutional crisis going on. And disproportionality of representation in the Senate – sure, that's an issue, but it's not a huge one. Bigger issues have been solved by amendment, and this one doesn't seem to have a really cataclysmic effect on the Union. And there's just a lot of lame complaints here. Amendment is difficult, but it isn't that difficult. We need to actually try it if we're going to complain that it doesn't work. The fact that an amendment hasn't spontaneously appeared out of thin air doesn't prove much.
Honestly, the further I get in this article, the worse it is. Referencing Clay Shirky TED talks? "Smartphone-enabled direct democracy"? And you want to complain about deadlock? – look at California and tell me that more "direct democracy" is what we need.
There are no answers or solutions here; just a lot of silly ideas.
posted by koeselitz at 9:13 PM on November 5, 2013 [20 favorites]
Well – while of course I agree that slavery is really an issue that the Constitution flatly refused to resolve (people on both sides of the issue figured they could wait it out) that alone does not convince me of the Constitution's flawed-ness. I am no exceptionalist by any stretch of the imagination, but it's insane how long that thing has lasted. We can compare it with some other failed constitutions, of which there are legions and legions. The idea that we could just replace it with a nicer one is a pipe dream that ignores the realities of constitution-making.
And really – this Atlantic article is utterly unconvincing. All of the "problems" are either by design or negligible. "Deadlock" is not necessarily a terrifying thing, and the author hasn't done much to convince us that there's some kind of constitutional crisis going on. And disproportionality of representation in the Senate – sure, that's an issue, but it's not a huge one. Bigger issues have been solved by amendment, and this one doesn't seem to have a really cataclysmic effect on the Union. And there's just a lot of lame complaints here. Amendment is difficult, but it isn't that difficult. We need to actually try it if we're going to complain that it doesn't work. The fact that an amendment hasn't spontaneously appeared out of thin air doesn't prove much.
Honestly, the further I get in this article, the worse it is. Referencing Clay Shirky TED talks? "Smartphone-enabled direct democracy"? And you want to complain about deadlock? – look at California and tell me that more "direct democracy" is what we need.
There are no answers or solutions here; just a lot of silly ideas.
posted by koeselitz at 9:13 PM on November 5, 2013 [20 favorites]
My take on Marbury is that it replaces a really bad flaw with an only moderately bad one, and that in the net it's better to have the Supreme Court deciding the limits of its own power rather than letting Congress do so.
Agreed, but that practical outcome does not eliminate the circularity and lack of logical foundation for the Court's decision. The lack of clear judicial review function in the Constitution could be seen as yet another of its flaws, but the fact is I remain irked by circular, non-logical arguments made by our supposed intellectual judiciary elite. All Marbury v. Madison says to me is that Supreme Court Justices are, after all, politicians, too. The "legitimacy loop" is just as much present in a Court that creates its own precedent. Also, at a very practical level, ALL federal judges are appointed by politicians because of the way their political beliefs align with those of the sitting President. They are not Plato's Guardians, yet they have that power. In sum, politics is shitty.
posted by JimInLoganSquare at 9:18 PM on November 5, 2013
Agreed, but that practical outcome does not eliminate the circularity and lack of logical foundation for the Court's decision. The lack of clear judicial review function in the Constitution could be seen as yet another of its flaws, but the fact is I remain irked by circular, non-logical arguments made by our supposed intellectual judiciary elite. All Marbury v. Madison says to me is that Supreme Court Justices are, after all, politicians, too. The "legitimacy loop" is just as much present in a Court that creates its own precedent. Also, at a very practical level, ALL federal judges are appointed by politicians because of the way their political beliefs align with those of the sitting President. They are not Plato's Guardians, yet they have that power. In sum, politics is shitty.
posted by JimInLoganSquare at 9:18 PM on November 5, 2013
A solution would be rather simple and painless and requires no major changes. It simply allows the future voter to vote for a hypothetical runoff pair by choosing up to two candidates for the potential next round (because there are two spaces, therefore two votes allowed). But the next vote would be avoided if the leading candidate reaches a majority threshold, which as a process maintains party incentive to concentrate their efforts, rather than fragment them.
Like instant-runoff voting, this is still too complex. Even simpler, requiring no changes to ballots, and no lengthy description: approval voting. Vote for every candidate you approve of, and the one with the most votes wins. That's it.
posted by stopgap at 9:19 PM on November 5, 2013 [4 favorites]
Like instant-runoff voting, this is still too complex. Even simpler, requiring no changes to ballots, and no lengthy description: approval voting. Vote for every candidate you approve of, and the one with the most votes wins. That's it.
posted by stopgap at 9:19 PM on November 5, 2013 [4 favorites]
zardoz: “koselitz- you are right, I didn't edit that very well. I didn't mean to be misleading, I just wanted to make it briefer.”
No worries – thanks for the interesting article, even if I disagree with it, and the opportunity to talk about this here. I mostly wanted to point that out because I think Bruce Ackerman himself would say this is sort of a simple approach. He posits that there are actually different distinct constitutional eras which in a very real way have different regimes and different constitutions
According to that theory, we've only had our current constitution for about seventy or eighty years. There's a lot to be said for that perspective; it makes a good deal of sense.
It's easy to say that the Founders had no idea about the reality of our world today, but we've been rewriting the constitution steadily since then – did Lincoln have any idea? Did Roosevelt? We actually have a modern system built up around the world we live in in a relatively thorough way. I don't see any reason to want to change it completely.
JimInLoganSquare: “Agreed, but that practical outcome does not eliminate the circularity and lack of logical foundation for the Court's decision. The lack of clear judicial review function in the Constitution could be seen as yet another of its flaws, but the fact is I remain irked by circular, non-logical arguments made by our supposed intellectual judiciary elite. All Marbury v. Madison says to me is that Supreme Court Justices are, after all, politicians, too.”
Maybe this is a derail, but how in the world is Marbury v Madison circular in its reasoning? The body of Marshall's writings suggests very, very strongly that he was absolutely not 'just a politician.' In my mind he is in the running for the most intelligent and intellectual of the founding fathers, in fact. So I guess I missed the part where he was being specious or circular in Marbury – that's a pretty big thing to claim.
posted by koeselitz at 9:22 PM on November 5, 2013 [3 favorites]
No worries – thanks for the interesting article, even if I disagree with it, and the opportunity to talk about this here. I mostly wanted to point that out because I think Bruce Ackerman himself would say this is sort of a simple approach. He posits that there are actually different distinct constitutional eras which in a very real way have different regimes and different constitutions
According to that theory, we've only had our current constitution for about seventy or eighty years. There's a lot to be said for that perspective; it makes a good deal of sense.
It's easy to say that the Founders had no idea about the reality of our world today, but we've been rewriting the constitution steadily since then – did Lincoln have any idea? Did Roosevelt? We actually have a modern system built up around the world we live in in a relatively thorough way. I don't see any reason to want to change it completely.
JimInLoganSquare: “Agreed, but that practical outcome does not eliminate the circularity and lack of logical foundation for the Court's decision. The lack of clear judicial review function in the Constitution could be seen as yet another of its flaws, but the fact is I remain irked by circular, non-logical arguments made by our supposed intellectual judiciary elite. All Marbury v. Madison says to me is that Supreme Court Justices are, after all, politicians, too.”
Maybe this is a derail, but how in the world is Marbury v Madison circular in its reasoning? The body of Marshall's writings suggests very, very strongly that he was absolutely not 'just a politician.' In my mind he is in the running for the most intelligent and intellectual of the founding fathers, in fact. So I guess I missed the part where he was being specious or circular in Marbury – that's a pretty big thing to claim.
posted by koeselitz at 9:22 PM on November 5, 2013 [3 favorites]
JimInLoganSquare: “The 'legitimacy loop' is just as much present in a Court that creates its own precedent.”
Maybe this is what you meant by "circularity," in which case I'll answer it: this is not how "legitimacy" works, as Marshall knew quite well, having read Montesquieu. Marshall was not declaring his own power by fiat in Marbury v Madison, and thereby acting as though the Court had power to grant itself power before power was granted by anyone else; that's silly. Marshall was expressing a doctrine about how the Constitution was intended to lay out the separation of powers – a doctrine which had some foundation, given Marshall's friendship with Madison himself and his involvement in the drafting of the document. He was emphatically not saying "the Court is going to use its power to give itself Constitutional power." He was saying "I believe that the Constitution gives the Court power, by implication and by intention, and I am going to exercise it."
posted by koeselitz at 9:32 PM on November 5, 2013 [3 favorites]
Maybe this is what you meant by "circularity," in which case I'll answer it: this is not how "legitimacy" works, as Marshall knew quite well, having read Montesquieu. Marshall was not declaring his own power by fiat in Marbury v Madison, and thereby acting as though the Court had power to grant itself power before power was granted by anyone else; that's silly. Marshall was expressing a doctrine about how the Constitution was intended to lay out the separation of powers – a doctrine which had some foundation, given Marshall's friendship with Madison himself and his involvement in the drafting of the document. He was emphatically not saying "the Court is going to use its power to give itself Constitutional power." He was saying "I believe that the Constitution gives the Court power, by implication and by intention, and I am going to exercise it."
posted by koeselitz at 9:32 PM on November 5, 2013 [3 favorites]
koeselitz, I am not a Constitutional scholar. I do not mean to insult Justice Marshall or your opinion of him as an intelligent and intellectual person; I would have to agree he was most definitely all of those things.
However, I'll point out that basing your opinion of Marshall's decision in Marbury v. Madison on a general idea that he was a very smart guy is maybe not the best way to evaluate his opinion in that specific opinion; it sort of ignores the possibility that this brilliant guy got it wrong on this one occasion. An occasion in which he created for himself and his Court a political power that was never expressly granted in the Constitution. This is my impression, one I developed in law school 20 years ago based on how the decision was presented to me and my own reading of it at the time.
The circularity in Marbury v. Madison that I am seeing is the notion that, because something needs to be decided by the Court, the Court has the right to decide on what basis it should be decided. An equally valid and non-circular way of looking at the situation would have been to refuse to decide the case. That's my problem with Marbury v. Madison. While as you say and I agree, Marshall "was saying, 'I believe that the Constitution gives the Court power, by implication and by intention, and I am going to exercise it.', he didn't have an express, written mandate in the Constitution to do that. It was, to my way of thinking, judicial fiat. But, again, I'm just a guy with a law license doing what he does; I am not a Constitutional scholar, just a person with some somewhat educated opinions.
posted by JimInLoganSquare at 9:40 PM on November 5, 2013
However, I'll point out that basing your opinion of Marshall's decision in Marbury v. Madison on a general idea that he was a very smart guy is maybe not the best way to evaluate his opinion in that specific opinion; it sort of ignores the possibility that this brilliant guy got it wrong on this one occasion. An occasion in which he created for himself and his Court a political power that was never expressly granted in the Constitution. This is my impression, one I developed in law school 20 years ago based on how the decision was presented to me and my own reading of it at the time.
The circularity in Marbury v. Madison that I am seeing is the notion that, because something needs to be decided by the Court, the Court has the right to decide on what basis it should be decided. An equally valid and non-circular way of looking at the situation would have been to refuse to decide the case. That's my problem with Marbury v. Madison. While as you say and I agree, Marshall "was saying, 'I believe that the Constitution gives the Court power, by implication and by intention, and I am going to exercise it.', he didn't have an express, written mandate in the Constitution to do that. It was, to my way of thinking, judicial fiat. But, again, I'm just a guy with a law license doing what he does; I am not a Constitutional scholar, just a person with some somewhat educated opinions.
posted by JimInLoganSquare at 9:40 PM on November 5, 2013
I suppose we ought to note Arrow's Impossibility Theorem: "It is impossible to have a perfectly fair voting system when there are at least two voters and at least three alternatives to choose amongst."
posted by Chocolate Pickle at 10:06 PM on November 5, 2013 [2 favorites]
posted by Chocolate Pickle at 10:06 PM on November 5, 2013 [2 favorites]
The U.S. Constitution does not expressly grant the Supreme Court the power to overrule laws for constitutional reasons. The Court essentially granted itself that power in Marbury v. Madison
Naw, everyone knew that the new Constitution had a judiciary with the power of judicial review before it went into effect. It's right in the Federalist as something that's uncontroversially a feature of the new Constitution, an obvious and incontrovertible consequence of a written constitution and an independent judiciary.
The express grant of authority is just "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
posted by ROU_Xenophobe at 10:10 PM on November 5, 2013 [2 favorites]
Naw, everyone knew that the new Constitution had a judiciary with the power of judicial review before it went into effect. It's right in the Federalist as something that's uncontroversially a feature of the new Constitution, an obvious and incontrovertible consequence of a written constitution and an independent judiciary.
The express grant of authority is just "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."
posted by ROU_Xenophobe at 10:10 PM on November 5, 2013 [2 favorites]
Arend Lijphart is a political scientist who has spent much of his career trying to answer the fundamental question, "What works best?" and he thinks he knows the answer. "Democracies work best if they are consensus instead of majoritarian democracies. The most important constitutional provisions that help in this direction is to have a parliamentary system and elections by [proportional representation]. The U.S. is the opposite system, with a presidential system and plurality single-member-district elections," he said an email, drawing on complex quantitative analysis he's done to compare economic and political outcomes across dozens of democratic countries with different systems.The problem essentially in a nutshell. Plus the US is criminally underrepresented in both houses of Congress.
posted by Talez at 10:10 PM on November 5, 2013 [7 favorites]
That Constitution Drafter's Handbook is really cool. I want to make a multiple choice/choose your own constitution thing using the sample text they provide. That would be so awesome.
posted by Garm at 10:16 PM on November 5, 2013 [3 favorites]
posted by Garm at 10:16 PM on November 5, 2013 [3 favorites]
stopgap: "Even simpler, requiring no changes to ballots, and no lengthy description: approval voting. Vote for every candidate you approve of, and the one with the most votes wins. "
A problem with approval voting is that it's not obvious what it means to "approve" of a candidate.
Suppose I'm a centrist Democrat in the US. Currently, I might vote to approve the Democrat and Green candidates, and not the Republican or Libertarian. But if a Fascist Party was seriously in the running I'd do whatever it took to stop them, and suddenly I'd be approving the Republicans even though they haven't changed at all. Conversely, if the Greens somehow overtook the Republicans, I might only approve of the Democrats and not the Greens, even though the Greens have the same policies as before.
My point is that simplicity of counting or ballot design isn't the only thing that matters*. Simplicity of voting matters too. In every mainstream electoral system, once I as a voter figure out my preferences among candidates, there's one obvious and sincere way to vote. Systems like approval voting and range voting that have multiple sincere options can really confuse voters. Maybe that's a cost worth paying, I don't know.
* Not that the US is known for simple ballots!
posted by vasi at 10:16 PM on November 5, 2013 [1 favorite]
A problem with approval voting is that it's not obvious what it means to "approve" of a candidate.
Suppose I'm a centrist Democrat in the US. Currently, I might vote to approve the Democrat and Green candidates, and not the Republican or Libertarian. But if a Fascist Party was seriously in the running I'd do whatever it took to stop them, and suddenly I'd be approving the Republicans even though they haven't changed at all. Conversely, if the Greens somehow overtook the Republicans, I might only approve of the Democrats and not the Greens, even though the Greens have the same policies as before.
My point is that simplicity of counting or ballot design isn't the only thing that matters*. Simplicity of voting matters too. In every mainstream electoral system, once I as a voter figure out my preferences among candidates, there's one obvious and sincere way to vote. Systems like approval voting and range voting that have multiple sincere options can really confuse voters. Maybe that's a cost worth paying, I don't know.
* Not that the US is known for simple ballots!
posted by vasi at 10:16 PM on November 5, 2013 [1 favorite]
I suppose we ought to note Arrow's Impossibility Theorem: "It is impossible to have a perfectly fair voting system when there are at least two voters and at least three alternatives to choose amongst."
It's actually broader than that, and I wish people wouldn't state it as being about voting, since occasionally it leads to misguided libertarians blethering about "Maybe we shouldn't be voting on all this stuff, then."
What it actually says is that there is no possible way of aggregating individual preferences into binding outcomes that meets the five conditions Arrow describes. This includes nonvoting methods of collective decision-making like the market.
posted by ROU_Xenophobe at 10:16 PM on November 5, 2013 [6 favorites]
It's actually broader than that, and I wish people wouldn't state it as being about voting, since occasionally it leads to misguided libertarians blethering about "Maybe we shouldn't be voting on all this stuff, then."
What it actually says is that there is no possible way of aggregating individual preferences into binding outcomes that meets the five conditions Arrow describes. This includes nonvoting methods of collective decision-making like the market.
posted by ROU_Xenophobe at 10:16 PM on November 5, 2013 [6 favorites]
The list of questions goes on, but the Constitution doesn't answer them, so judges have had to fill in the blanks. Where modern constitutions in other nations get specific, we get judicial activism. Sometimes it works, but it's not an approach without serious drawbacks. Take civil rights, which the courts have done a decent job of protecting—only after reversing earlier mistakes. And there's theoretically nothing to stop judges from flip-flopping back to their pre-Brown v. Board of Education jurisprudence.
I wonder if this has actually worked in our favor. The judicial activism of the supreme court has kind of been a backdoor way to update the constitution to meet with new societal norms.
posted by heathkit at 10:45 PM on November 5, 2013 [1 favorite]
I wonder if this has actually worked in our favor. The judicial activism of the supreme court has kind of been a backdoor way to update the constitution to meet with new societal norms.
posted by heathkit at 10:45 PM on November 5, 2013 [1 favorite]
Systems like approval voting and range voting that have multiple sincere options can really confuse voters.
And how.
I suggested approval voting for deciding between multiple proposals in a volunteer/non-profit group I was part of. And almost everybody had trouble processing it. They were really hung up on the idea that no limitation on the number of proposals you could vote for would somehow mean cheating, even though nobody could really articulate what they meant and how that would work.
This was not an average sample of the population -- it was a group of educated and accomplished people, some with advanced/professional degrees. And I think on various occasions we ended up either plurality voting our way through a wacky bracket/tournament tree instead, or going with limited multiple votes, because that's what they felt comfortable with instead.
posted by weston at 10:48 PM on November 5, 2013 [2 favorites]
And how.
I suggested approval voting for deciding between multiple proposals in a volunteer/non-profit group I was part of. And almost everybody had trouble processing it. They were really hung up on the idea that no limitation on the number of proposals you could vote for would somehow mean cheating, even though nobody could really articulate what they meant and how that would work.
This was not an average sample of the population -- it was a group of educated and accomplished people, some with advanced/professional degrees. And I think on various occasions we ended up either plurality voting our way through a wacky bracket/tournament tree instead, or going with limited multiple votes, because that's what they felt comfortable with instead.
posted by weston at 10:48 PM on November 5, 2013 [2 favorites]
I honestly cannot think of anything in the realm of politics or history that is more terrifying than the very idea of this generation re-writing the United States constitution. Not because it would be suicidal, which it would of course be, but because it would be so embarrassingly, stupidly, clumsily suicidal.
A general constitutional convention has always been a frightening thought, but now? I suppose it could be fun in a let's-get-drunk-and-watch-a-really-bad-movie kind of way. It might even be weirdly satisfying to wrap this experiment up in such a fashion, like saying fuck it and going to your finals with a flask of whiskey because you know you aren't going to pass anyway. All analogies aside, I'm sure the actual process would involve a lot of drunkenness, hooting, shirtless men standing on top of cars and other things, and people throwing up on other people. And lots of guns. Lots and lots of guns.
posted by Max Udargo at 10:52 PM on November 5, 2013 [3 favorites]
A general constitutional convention has always been a frightening thought, but now? I suppose it could be fun in a let's-get-drunk-and-watch-a-really-bad-movie kind of way. It might even be weirdly satisfying to wrap this experiment up in such a fashion, like saying fuck it and going to your finals with a flask of whiskey because you know you aren't going to pass anyway. All analogies aside, I'm sure the actual process would involve a lot of drunkenness, hooting, shirtless men standing on top of cars and other things, and people throwing up on other people. And lots of guns. Lots and lots of guns.
posted by Max Udargo at 10:52 PM on November 5, 2013 [3 favorites]
Throwing the Constitution Out With The Bathwater
posted by the man of twists and turns at 11:05 PM on November 5, 2013 [1 favorite]
posted by the man of twists and turns at 11:05 PM on November 5, 2013 [1 favorite]
I think a simple rules change in the senate abolishing the filibuster would help a lot.
posted by empath at 11:11 PM on November 5, 2013 [1 favorite]
posted by empath at 11:11 PM on November 5, 2013 [1 favorite]
"Smartphone-enabled direct democracy"?
Ha. He should read Dave Eggers' new book The Circle. It's incredible terrible, but he should read it anyway.
posted by drjimmy11 at 11:20 PM on November 5, 2013 [1 favorite]
Ha. He should read Dave Eggers' new book The Circle. It's incredible terrible, but he should read it anyway.
posted by drjimmy11 at 11:20 PM on November 5, 2013 [1 favorite]
And yeah, why ask for a bunch of shiny new toys when you never even play with the ones you already have- in particular that awesome fourth one?
posted by drjimmy11 at 11:21 PM on November 5, 2013 [2 favorites]
posted by drjimmy11 at 11:21 PM on November 5, 2013 [2 favorites]
-Dynamics and Stability of Constitutions, Coalitions, and Clubs
-Political Economy in a Changing World
-What Are Institutions?
-Why Congress can't seem to get anything done
-Thorstein Veblen's critique of the American system of business
-Ten political assumptions
-Price signals vs culture
-How The Hell Is Terry McAuliffe Winning?
-Somali piracy more sophisticated than you thought
-My Five-Point Plan for Fixing Everything
-Keynes Was Right
-Hayek's liberaltarian essay " 'Free' Enterprise and Competitive Order"
also btw...
Two Sides Of One Bad Coin: "both populism and technocracy assume that the answers to our most profound public problems are simple, and are readily available. One assumes that the people possess these answers, and that they are denied the power to put them into effect by some elite that wants to oppress them; the other assumes the experts possess these answers, and they are denied the power to put them into effect by a system that empowers heedless and prejudiced majorities or the venal economic interests of the wealthy over the attainment of the objectively obvious good of the people."
posted by kliuless at 12:21 AM on November 6, 2013 [3 favorites]
-Political Economy in a Changing World
-What Are Institutions?
-Why Congress can't seem to get anything done
-Thorstein Veblen's critique of the American system of business
-Ten political assumptions
-Price signals vs culture
-How The Hell Is Terry McAuliffe Winning?
-Somali piracy more sophisticated than you thought
-My Five-Point Plan for Fixing Everything
-Keynes Was Right
-Hayek's liberaltarian essay " 'Free' Enterprise and Competitive Order"
also btw...
Two Sides Of One Bad Coin: "both populism and technocracy assume that the answers to our most profound public problems are simple, and are readily available. One assumes that the people possess these answers, and that they are denied the power to put them into effect by some elite that wants to oppress them; the other assumes the experts possess these answers, and they are denied the power to put them into effect by a system that empowers heedless and prejudiced majorities or the venal economic interests of the wealthy over the attainment of the objectively obvious good of the people."
posted by kliuless at 12:21 AM on November 6, 2013 [3 favorites]
The US would be a very different place were it not for the extra-constitutional filibuster. Start there. If we'd fix that and give SC justices an 18 year term--what a wonderful world it'd be.
posted by professor plum with a rope at 12:32 AM on November 6, 2013
posted by professor plum with a rope at 12:32 AM on November 6, 2013
As seen in this thread people would only change the things that they think would give them political advantage. The filibuster seems like a bad idea now, only because Republicans are using it. Lifetime terms for Supreme Court justices seems like a bad idea now, only because there's a Democrat in the White House who would pack it full of lefties. Fast forward to 2016 when the Republicans are back in power and none of these changes would be welcome by the left who will use the SAME tactics to stop their political opponents.
The problem is not the Constitution but the two-party system which is no where mandated by the Constitution, but a result of the majority take all system of voting.
A change of ATTITUDE would be far more useful than a change of form and structure. Democrats force through Obamacare using a parliamentary trick without a single Republican vote and act as if there is some broad consensus for it. Republicans do the same thing trying to block funding for it and they are suddenly the ones wrecking government. It's bullshit on both sides.
Compromise is what is missing in American politics and it is the result of an astonishingly weak, but extremely partisan Executive Branch. America, despite her separation of powers, is a Presidential country and without a balanced and effective chief executive, you get what exists now under Skippy.
A Constitutional Convention would only be a reflection of the partisan divide and would produce no consensus and no useful result. I recall an interview with Ken Burns (he of the PBS Civil War program). He was asked what issue could result in a new Civil War. He answered without hesitation "abortion." Imagine a Constitutional Convention trying to resolve this? Liberals would demand an absolute right to abortion as the first line of any new Constitution. Conservatives would demand a right to life and no compromise on the matter would ever be found.
Maybe what is needed isn't a new Constitution, but a new Civil War where the left and the right could go their separate ways and leave each other in peace.
posted by three blind mice at 1:03 AM on November 6, 2013 [3 favorites]
The problem is not the Constitution but the two-party system which is no where mandated by the Constitution, but a result of the majority take all system of voting.
A change of ATTITUDE would be far more useful than a change of form and structure. Democrats force through Obamacare using a parliamentary trick without a single Republican vote and act as if there is some broad consensus for it. Republicans do the same thing trying to block funding for it and they are suddenly the ones wrecking government. It's bullshit on both sides.
Compromise is what is missing in American politics and it is the result of an astonishingly weak, but extremely partisan Executive Branch. America, despite her separation of powers, is a Presidential country and without a balanced and effective chief executive, you get what exists now under Skippy.
A Constitutional Convention would only be a reflection of the partisan divide and would produce no consensus and no useful result. I recall an interview with Ken Burns (he of the PBS Civil War program). He was asked what issue could result in a new Civil War. He answered without hesitation "abortion." Imagine a Constitutional Convention trying to resolve this? Liberals would demand an absolute right to abortion as the first line of any new Constitution. Conservatives would demand a right to life and no compromise on the matter would ever be found.
Maybe what is needed isn't a new Constitution, but a new Civil War where the left and the right could go their separate ways and leave each other in peace.
posted by three blind mice at 1:03 AM on November 6, 2013 [3 favorites]
A civil war (I am sorry! a Civil War!) in which we could go our separate ways in peace? This would represent a considerable achievement. Gentlemen, start your legislators and set your phasers to stun, it's on!
posted by Wolof at 1:50 AM on November 6, 2013 [1 favorite]
posted by Wolof at 1:50 AM on November 6, 2013 [1 favorite]
Most of the "problems" this article identifies are not structural problems, but problems with implementation.
The 17th Amendment is horrible, and should be repealed, definitely, but not because it is inherently undemocratic, but because it creates two legislative bodies that both rely on a popularity contest.
Campaign finance? That has nothing to do with the Constitution, it's just bad law. There are numerous ways to fix it without tossing the whole thing.
The Constitution doesn't have all the answers? Of course it doesn't, that's not the point of it. It's a framework, not a code.
It's hard to change by design, because only the most important principles belong there.
Style of election? Every state can do their own thing, that's the major advantage of the Electoral College.
You want IRV? Vote by mail? Implement it in your state, no need to bother the rest of us with it.
Filibuster? Not even in the Constitution. That's a legislative rule.
I'm all for exploring the issue of improving governance, but this article is just ... confused.
posted by madajb at 1:52 AM on November 6, 2013 [4 favorites]
The 17th Amendment is horrible, and should be repealed, definitely, but not because it is inherently undemocratic, but because it creates two legislative bodies that both rely on a popularity contest.
Campaign finance? That has nothing to do with the Constitution, it's just bad law. There are numerous ways to fix it without tossing the whole thing.
The Constitution doesn't have all the answers? Of course it doesn't, that's not the point of it. It's a framework, not a code.
It's hard to change by design, because only the most important principles belong there.
Style of election? Every state can do their own thing, that's the major advantage of the Electoral College.
You want IRV? Vote by mail? Implement it in your state, no need to bother the rest of us with it.
Filibuster? Not even in the Constitution. That's a legislative rule.
I'm all for exploring the issue of improving governance, but this article is just ... confused.
posted by madajb at 1:52 AM on November 6, 2013 [4 favorites]
i think one could fix a lot of the problem with one simple amendment - a congress and president that fails to pass an annual budget by the end of the year is forced to run for re-election, with all current office holders being banned from running in that election
it'll either create compromise or sheer chaos - but eventually the politicians would learn that if they're to keep their jobs they have to work with each other
that's the major advantage of a pariamentary system - a government that can't forge an agreement on a budget gets dissolved
posted by pyramid termite at 2:55 AM on November 6, 2013 [4 favorites]
it'll either create compromise or sheer chaos - but eventually the politicians would learn that if they're to keep their jobs they have to work with each other
that's the major advantage of a pariamentary system - a government that can't forge an agreement on a budget gets dissolved
posted by pyramid termite at 2:55 AM on November 6, 2013 [4 favorites]
The filibuster seems like a bad idea now, only because Republicans are using it. Lifetime terms for Supreme Court justices seems like a bad idea now, only because there's a Democrat in the White House who would pack it full of lefties. Fast forward to 2016 when the Republicans are back in power and none of these changes would be welcome by the left who will use the SAME tactics to stop their political opponents.
First of all, the filibuster is not as hated as you think it is. Certainly not in the Senate itself, where the Democrats have been pushing for modification rather than elimination. And second, your claims about 2016 can be easily rebutted by the fact that this didn't happen prior to Jan 2009. There has never been a more obstructionist era in Congress. IIRC, the last two legislative sessions have been by far the least productive in US history.
A change of ATTITUDE would be far more useful than a change of form and structure. Democrats force through Obamacare using a parliamentary trick without a single Republican vote and act as if there is some broad consensus for it.
You are aware that this "parliamentary trick" was approving a bill that had a majority of votes in one chambers with...a majority of votes in another chamber, yes? It may not have had a "broad" consensus (which is handwavey wording anyway), but from the very beginning it has garnered a majority when polling asks for support or expansion. That hasn't changed.
Republicans do the same thing trying to block funding for it and they are suddenly the ones wrecking government.
Actually, no, they failed to block funding for it 41 times and then their leader failed to bring up routine legislation fulfilling his chamber's Constitutional obligation despite the fact that the Senate (the main source for parliamentary trickery) had fulfilled theirs. That's not a parliamentary trick, and they weren't "suddenly" the ones wrecking government, they did it all along, but made it more explicit.
It's bullshit on both sides.
Thanks, David Brooks. Are you going to regale us with tales of mandates and whatnot now?
posted by zombieflanders at 3:14 AM on November 6, 2013 [16 favorites]
First of all, the filibuster is not as hated as you think it is. Certainly not in the Senate itself, where the Democrats have been pushing for modification rather than elimination. And second, your claims about 2016 can be easily rebutted by the fact that this didn't happen prior to Jan 2009. There has never been a more obstructionist era in Congress. IIRC, the last two legislative sessions have been by far the least productive in US history.
A change of ATTITUDE would be far more useful than a change of form and structure. Democrats force through Obamacare using a parliamentary trick without a single Republican vote and act as if there is some broad consensus for it.
You are aware that this "parliamentary trick" was approving a bill that had a majority of votes in one chambers with...a majority of votes in another chamber, yes? It may not have had a "broad" consensus (which is handwavey wording anyway), but from the very beginning it has garnered a majority when polling asks for support or expansion. That hasn't changed.
Republicans do the same thing trying to block funding for it and they are suddenly the ones wrecking government.
Actually, no, they failed to block funding for it 41 times and then their leader failed to bring up routine legislation fulfilling his chamber's Constitutional obligation despite the fact that the Senate (the main source for parliamentary trickery) had fulfilled theirs. That's not a parliamentary trick, and they weren't "suddenly" the ones wrecking government, they did it all along, but made it more explicit.
It's bullshit on both sides.
Thanks, David Brooks. Are you going to regale us with tales of mandates and whatnot now?
posted by zombieflanders at 3:14 AM on November 6, 2013 [16 favorites]
A civil war (I am sorry! a Civil War!) in which we could go our separate ways in peace? This would represent a considerable achievement. Gentlemen, start your legislators and set your phasers to stun, it's on!
I think you got confused somewhere around "war" and "peace".
posted by Lord Chancellor at 4:03 AM on November 6, 2013
I think you got confused somewhere around "war" and "peace".
posted by Lord Chancellor at 4:03 AM on November 6, 2013
Indeed, the entire idea of a judiciary as an independent branch of the government balancing against legislative and executive was an American innovation.
Montesquieu, non?
posted by ersatz at 4:21 AM on November 6, 2013 [1 favorite]
Montesquieu, non?
posted by ersatz at 4:21 AM on November 6, 2013 [1 favorite]
Hey, guys, how about us lot? (The Rest Of The World raises its hand)
It's all very well the United States thinking of itself as a constitutional entity, whole unto itself, but that's just not true. The whole extra-constitutional world of international trade treaties, international corporations, international security and international everything is almost entirely alien to your original constitution, but by God you use it. it's part of your entire structure, and you have responsibilities towards it.
If you think your legislative thrombosis isn't pissing us off too, please - think again.
Don't forget us when you rewire.
Just sayin'.
posted by Devonian at 4:38 AM on November 6, 2013 [2 favorites]
It's all very well the United States thinking of itself as a constitutional entity, whole unto itself, but that's just not true. The whole extra-constitutional world of international trade treaties, international corporations, international security and international everything is almost entirely alien to your original constitution, but by God you use it. it's part of your entire structure, and you have responsibilities towards it.
If you think your legislative thrombosis isn't pissing us off too, please - think again.
Don't forget us when you rewire.
Just sayin'.
posted by Devonian at 4:38 AM on November 6, 2013 [2 favorites]
A general constitutional convention has always been a frightening thought, but now? I suppose it could be fun in a let's-get-drunk-and-watch-a-really-bad-movie kind of way. It might even be weirdly satisfying to wrap this experiment up in such a fashion, like saying fuck it and going to your finals with a flask of whiskey because you know you aren't going to pass anyway. All analogies aside, I'm sure the actual process would involve a lot of drunkenness, hooting, shirtless men standing on top of cars and other things, and people throwing up on other people. And lots of guns. Lots and lots of guns.
Not quite. Imagine a new constitutional convention just like the old one: all of the richest men in America get together behind closed doors to make a new government. The original framers were dominated by rich plantation owners whose business was built on slavery. So, naturally the constitution had safeguards for their "business model" built in. Imagine DRM as a constitutional mandate, "Right to Work" in the bill of rights, unlimited copyright/patent protection, etc. The way government intersects with business is far more profound than it was in 1783 and so a new constitution would more profoundly reflect the powerful business interests in our society. And that's not getting into the consequences of having the document written by men whose big ideas come from "Who Moved My Cheese."
posted by ennui.bz at 4:39 AM on November 6, 2013 [8 favorites]
Not quite. Imagine a new constitutional convention just like the old one: all of the richest men in America get together behind closed doors to make a new government. The original framers were dominated by rich plantation owners whose business was built on slavery. So, naturally the constitution had safeguards for their "business model" built in. Imagine DRM as a constitutional mandate, "Right to Work" in the bill of rights, unlimited copyright/patent protection, etc. The way government intersects with business is far more profound than it was in 1783 and so a new constitution would more profoundly reflect the powerful business interests in our society. And that's not getting into the consequences of having the document written by men whose big ideas come from "Who Moved My Cheese."
posted by ennui.bz at 4:39 AM on November 6, 2013 [8 favorites]
Democrats force through Obamacare using a parliamentary trick without a single Republican vote and act as if there is some broad consensus for it.
Pass universal healthcare with this one weird trick that Republicans hate!
posted by empath at 4:41 AM on November 6, 2013 [12 favorites]
Pass universal healthcare with this one weird trick that Republicans hate!
posted by empath at 4:41 AM on November 6, 2013 [12 favorites]
The only way a new constitutional convention will happen is the same way it happened in Egypt or in any other country that had a revolution. You don't rewrite the constitution for governments that haven't failed.
posted by empath at 4:42 AM on November 6, 2013
posted by empath at 4:42 AM on November 6, 2013
I find it interesting that the US pushed Iraq and Afghanistan into British/Canadian style systems, not US style. There are probably some very smart people who realized that our constitution is not a good basis if you're starting from scratch.
posted by miyabo at 4:57 AM on November 6, 2013 [3 favorites]
posted by miyabo at 4:57 AM on November 6, 2013 [3 favorites]
I think you got confused somewhere around "war" and "peace".
Reminds me of a book I once tried to read. Had to put it down — too confusing.
Also, Napoleon.
posted by Wolof at 5:00 AM on November 6, 2013
Reminds me of a book I once tried to read. Had to put it down — too confusing.
Also, Napoleon.
posted by Wolof at 5:00 AM on November 6, 2013
Oh yeah, this is without a doubt the best time for the US to hold a constitutional convention. Before we only had Thomas Jefferson and Benjamin Franklin to look to, not Ted Cruz and Michelle Bachmann.
posted by Legomancer at 6:09 AM on November 6, 2013 [1 favorite]
posted by Legomancer at 6:09 AM on November 6, 2013 [1 favorite]
I've always liked the concept of the single six-year presidential term. Enough time to get things done, but you're not going to be spending time figuring out how to get re-elected, or raising money for that. I would also add in that the vice-president should not be eligible for further elected office (and the same goes for the president) so that the executive branch does not serve as a launching platform for the next campaign.
posted by azpenguin at 6:15 AM on November 6, 2013 [3 favorites]
posted by azpenguin at 6:15 AM on November 6, 2013 [3 favorites]
Yay for voting! Since approval voting has already been mentioned, I'd like to prattle on about a voting system that I'm currently kind of fascinated by (but haven't had time to study in detail):
Voters submit ranked ballots.
1. Start by calling a random candidate the "current" candidate
2. Select a random voter
3. From among the candidates that voter ranks as high or higher than the current candidate, select one at random to be the "current" candidate
4. Go to 2
What we're interested in is the candidate that we would expect to spend the most time as the current candidate. There are mathematical tools that allow us to find this out even without actually going through these steps at all*.
I've done a few experiments with this method, and (in the cases I checked) it finds Pareto-optimal candidates if they exist, so I think it's not totally brain-dead as a voting method. It's easy to vote honestly. But it would sadly be difficult to calculate the winner without the assistance of computers.
Also, if anyone has a snappy name for it, I'm all ears.
*This is a Markov process, so its steady state is described by the dominant eigenvector of its transition matrix. Each entry in the eigenvector corresponds to a candidate; the order of the values of those entries corresponds to the order of the candidates.
posted by a snickering nuthatch at 6:20 AM on November 6, 2013 [1 favorite]
Voters submit ranked ballots.
1. Start by calling a random candidate the "current" candidate
2. Select a random voter
3. From among the candidates that voter ranks as high or higher than the current candidate, select one at random to be the "current" candidate
4. Go to 2
What we're interested in is the candidate that we would expect to spend the most time as the current candidate. There are mathematical tools that allow us to find this out even without actually going through these steps at all*.
I've done a few experiments with this method, and (in the cases I checked) it finds Pareto-optimal candidates if they exist, so I think it's not totally brain-dead as a voting method. It's easy to vote honestly. But it would sadly be difficult to calculate the winner without the assistance of computers.
Also, if anyone has a snappy name for it, I'm all ears.
*This is a Markov process, so its steady state is described by the dominant eigenvector of its transition matrix. Each entry in the eigenvector corresponds to a candidate; the order of the values of those entries corresponds to the order of the candidates.
posted by a snickering nuthatch at 6:20 AM on November 6, 2013 [1 favorite]
Supreme Court Justice Scalia and the rest of the "originalists" are dead wrong when they say the Constitution is not a living document and cannot be changed. I like to remind folks that the Constitution is a flawed document by design. It was written by flawed men who knew they were living in a flawed age.
That's why Madison fought so hard for a Bill of Rights. He (correctly, in my view) surmised that the original document was not enough. It provided a foundation, but even foundations need to be shored up and re-strengthened from time to time to prevent collapse.
I agree with Three Blind Mice and others who have said a change in ATTITUDE would be preferable to a new Constitutional Covnention.
That's why Madison fought so hard for a Bill of Rights. He (correctly, in my view) surmised that the original document was not enough. It provided a foundation, but even foundations need to be shored up and re-strengthened from time to time to prevent collapse.
I agree with Three Blind Mice and others who have said a change in ATTITUDE would be preferable to a new Constitutional Covnention.
- First would be a recognition that people change their minds and that their views evolve over time. Ideological purity is anathema to reason and intellectual thought.
- Second would be a recognition that compromise is not only ok, but necessary to the functioning of our republic. Vociferous debate is fine, but at the end of the day, you have to compromise and call it a day.
"I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise."posted by zooropa at 6:28 AM on November 6, 2013 [4 favorites]
- Benjamin Franklin, speech given on the last day of the Convention
JimInLoganSquare: “The circularity in Marbury v. Madison that I am seeing is the notion that, because something needs to be decided by the Court, the Court has the right to decide on what basis it should be decided. An equally valid and non-circular way of looking at the situation would have been to refuse to decide the case. That's my problem with Marbury v. Madison. While as you say and I agree, Marshall "was saying, 'I believe that the Constitution gives the Court power, by implication and by intention, and I am going to exercise it.', he didn't have an express, written mandate in the Constitution to do that. It was, to my way of thinking, judicial fiat. But, again, I'm just a guy with a law license doing what he does; I am not a Constitutional scholar, just a person with some somewhat educated opinions.”
First of all, I'm no constitutional scholar myself; I do political philosophy, really, if I have any specialty, and focus mostly on medieval stuff.
But: I think just branding Marbury v Madison "circular" is missing the difficult and confusing reasoning it contains. I can see why that reasoning might be vexing and weird, but that doesn't mean it's circular or wrong. You say that it seems to be saying that, just because the Court is asked to decide something, it therefore has the power to decide something; but it clearly isn't quite saying that. In fact, the decision refuses to actually act on its decision and issue a writ of mandamus, deciding that it would be unconstitutional to do so. That was totally unexpected, frankly. There is something very political about it, yes. It should be noted that Marbury v Madison did not strictly initiate the idea of judicial review. There were four or five judicial review decisions that the Court had issued in the decade and a half before Marbury v Madison. The reason this case gets talked about is because it's the classic case that decides based on judicial review; and it does so in a novel way that highlights the fact that the Court gets to review constitutional cases.
What's ironic is that it does so specifically by not acting – by saying that the Court has the power to review cases for constitutionality, but it does not have the power to issue writs of mandamus. I agree that that's counter-intuitive, but it isn't a strict contradiction. Marshall clearly didn't want to issue the writ largely because it might have been ignored, delegitimizing the Court.
posted by koeselitz at 6:49 AM on November 6, 2013 [1 favorite]
First of all, I'm no constitutional scholar myself; I do political philosophy, really, if I have any specialty, and focus mostly on medieval stuff.
But: I think just branding Marbury v Madison "circular" is missing the difficult and confusing reasoning it contains. I can see why that reasoning might be vexing and weird, but that doesn't mean it's circular or wrong. You say that it seems to be saying that, just because the Court is asked to decide something, it therefore has the power to decide something; but it clearly isn't quite saying that. In fact, the decision refuses to actually act on its decision and issue a writ of mandamus, deciding that it would be unconstitutional to do so. That was totally unexpected, frankly. There is something very political about it, yes. It should be noted that Marbury v Madison did not strictly initiate the idea of judicial review. There were four or five judicial review decisions that the Court had issued in the decade and a half before Marbury v Madison. The reason this case gets talked about is because it's the classic case that decides based on judicial review; and it does so in a novel way that highlights the fact that the Court gets to review constitutional cases.
What's ironic is that it does so specifically by not acting – by saying that the Court has the power to review cases for constitutionality, but it does not have the power to issue writs of mandamus. I agree that that's counter-intuitive, but it isn't a strict contradiction. Marshall clearly didn't want to issue the writ largely because it might have been ignored, delegitimizing the Court.
posted by koeselitz at 6:49 AM on November 6, 2013 [1 favorite]
azpenguin: I would also add in that the vice-president should not be eligible for further elected office (and the same goes for the president) so that the executive branch does not serve as a launching platform for the next campaign.That's a good idea in theory, but it has already been disproven by events. In 1800, the election of Thomas Jefferson and automatic ascension of Aaron Burr nearly tore the country apart.
At the time, each party nominated two candidates for President. the Constitution stipulated that the 138 members of the Electoral College were obligated to cast two votes: in practice, that meant each voted for their favorite and a second who actually stood a chance at winning. The runner-up would automatically become Vice President. If both tied or no majority was obtained, the House of Representatives then decided the election.
In 1800, Aaron Burr and Thomas Jefferson tied in electoral votes. Both were from opposing parties with differing views on policy. Plus, both personally detested each other. There was a seven-day Constitutional crisis as neither man would concede and neither could achieve a majority in the House. Finally, after much wrangling, Jefferson was elected President.
Four years later, the Twelfth Amendment was passed to rectify the problem. From then on, the President and Vice President were each elected separately.
And as a side note, if you think the attack ads of today are bad, check out the mud that was slung in 1800. These guys really put the negative in negative campaigning.
posted by zooropa at 6:54 AM on November 6, 2013
Devonian: “Hey, guys, how about us lot? (The Rest Of The World raises its hand) It's all very well the United States thinking of itself as a constitutional entity, whole unto itself, but that's just not true. The whole extra-constitutional world of international trade treaties, international corporations, international security and international everything is almost entirely alien to your original constitution, but by God you use it. it's part of your entire structure, and you have responsibilities towards it. If you think your legislative thrombosis isn't pissing us off too, please - think again. Don't forget us when you rewire. Just sayin'.”
1. International trade treaties, international corporations, international security and international everything is not "alien" to our original constitution, and it's not "alien" to our current constitution. There are provisions in law and in the amendments that deal with these things, and they're clearly delineated in the constitution as it was originally instituted.
2. Did France consult the UK when it was writing its constitution? Has the UK consulted Scandinavia as it's constructed its constitution over the years? Why the hell should any country go around to the world and ask other nations what it should put in its constitution? A constitution is for the nation it constitutes, not for anyone else. The idea that it should take into account the wishes and desires of various other entities is preposterous. Let them have their own constitution if they want to be considered.
posted by koeselitz at 6:55 AM on November 6, 2013 [1 favorite]
1. International trade treaties, international corporations, international security and international everything is not "alien" to our original constitution, and it's not "alien" to our current constitution. There are provisions in law and in the amendments that deal with these things, and they're clearly delineated in the constitution as it was originally instituted.
2. Did France consult the UK when it was writing its constitution? Has the UK consulted Scandinavia as it's constructed its constitution over the years? Why the hell should any country go around to the world and ask other nations what it should put in its constitution? A constitution is for the nation it constitutes, not for anyone else. The idea that it should take into account the wishes and desires of various other entities is preposterous. Let them have their own constitution if they want to be considered.
posted by koeselitz at 6:55 AM on November 6, 2013 [1 favorite]
Even simpler, requiring no changes to ballots, and no lengthy description: approval voting. Vote for every candidate you approve of, and the one with the most votes wins. That's it.
This would produce clones. Yet perhaps the worst feature of approval voting is voting against someone and awarding free votes to random candidates and distorting the poll as information. I would recommend a modified approval voting for candidate pools that produce multiple winners such as city councils, but only if the allowed number of votes are kept to half or less of the pool itself, so if there are eleven candidates, allow up to five votes, etc. This would in effect be safe voting one side fairly. This would marginally help keep the clones down. Note that my proposal above is the most limited form of approval voting and also features a tie-breaker by counting raw decimal values of votes.
posted by Brian B. at 6:58 AM on November 6, 2013
This would produce clones. Yet perhaps the worst feature of approval voting is voting against someone and awarding free votes to random candidates and distorting the poll as information. I would recommend a modified approval voting for candidate pools that produce multiple winners such as city councils, but only if the allowed number of votes are kept to half or less of the pool itself, so if there are eleven candidates, allow up to five votes, etc. This would in effect be safe voting one side fairly. This would marginally help keep the clones down. Note that my proposal above is the most limited form of approval voting and also features a tie-breaker by counting raw decimal values of votes.
posted by Brian B. at 6:58 AM on November 6, 2013
Okay, I'm no attorney or scholar, but this whole hand-wringing over judicial review seems pretty silly to me. We learn in basic elementary school that the congress creates the law, the president enforces it, and the supreme court decides who's right or wrong when there's a conflict. Since the constitution IS IN FACT LAW, and since the constitution can clearly only be altered through the amendment process, then laws passed by congress are subordinate to the constitution, then OF COURSE the Supreme Court has the authority of judicial review. Goodness gracious, really? People think this is a convoluted argument? The constitution clearly states the SC is the supreme court of the land.
posted by PigAlien at 6:59 AM on November 6, 2013
posted by PigAlien at 6:59 AM on November 6, 2013
PigAlien: “Okay, I'm no attorney or scholar, but this whole hand-wringing over judicial review seems pretty silly to me. We learn in basic elementary school that the congress creates the law, the president enforces it, and the supreme court decides who's right or wrong when there's a conflict. Since the constitution is IN FACT LAW, and since the constitution can clearly only be altered through the amendment process, then laws passed by congress are subordinate to the constitution, the OF COURSE the Supreme Court has the authority of judicial review. Goodness gracious, really? People think this is a convoluted argument? The constitution clearly states the SC is the supreme court of the land.”
It's probably worth pointing this out – the founders were of differing opinions on judicial review, and while I personally agree with it as a principle, honestly it wasn't really settled in the modern sense until after the Civil War.
It was already a big issue at the time of Marbury v Madison. From the time the Constitution was ratified in 1789 until 1800, the same general group of people held power in government, and therefore their agenda set the tone of government and there was little opposition among them on it in general. In 1798, nervous and even a bit paranoid about French intervention in the US, they passed the Alien and Sedition Acts allowing the government to arrest and sentence citizens if their speech posed some perceived threat to the state. Jefferson and Madison were so alarmed by this that they secretly helped Virginia and Kentucky draft resolutions protesting it; Jefferson went even further than Madison, openly discussing the possibility of secession and "revolution and blood." The issue that Madison and Jefferson faced was an entire government of Federalists – the Supreme Court, the Legislature, and the Executive was pretty much all and entirely thoroughly in agreement on the necessity and legitimacy of the Alien and Sedition Acts. So what were they to do when the entire government seemed okay with something that seemed to them unconstitutional? Even when they managed to capture the executive branch when Jefferson was elected in 1800, the courts and the legislature were both for a while still in the control of the Federalists; and it would be a long, long time before the apparent Federalist control over the Supreme Court would come to an end.
It was in this atmosphere that Jefferson came to his idea of "departmentalism." In his opinion, it was not solely the Supreme Court's responsibility to determine whether laws or acts were strictly constitutional or not. Every single "department," every branch of government, must make these decisions, and never act if it thinks that acting would be against the Constitution. Jefferson considered the Constitution a "compact" between the states – and if any of them thought a law was unconstitutional, it was up to them to stand up and say so, act against that law if they felt it necessary, and perhaps even secede from the union. The significance of departmentalism can't be overstated. Under it, if the President disagrees with the Supreme Court about whether something is constitutional, the President is supposed to ignore the Supreme Court entirely; branches acts independently, without worrying about the Court's decisions about various things. That may sound like anarchy, but the balancing seemed to work for a long time. This was the legacy behind Andrew Jackson's famous refusal to follow the Marshall Court's decision in Worcester v Georgia.
posted by koeselitz at 7:28 AM on November 6, 2013
It's probably worth pointing this out – the founders were of differing opinions on judicial review, and while I personally agree with it as a principle, honestly it wasn't really settled in the modern sense until after the Civil War.
It was already a big issue at the time of Marbury v Madison. From the time the Constitution was ratified in 1789 until 1800, the same general group of people held power in government, and therefore their agenda set the tone of government and there was little opposition among them on it in general. In 1798, nervous and even a bit paranoid about French intervention in the US, they passed the Alien and Sedition Acts allowing the government to arrest and sentence citizens if their speech posed some perceived threat to the state. Jefferson and Madison were so alarmed by this that they secretly helped Virginia and Kentucky draft resolutions protesting it; Jefferson went even further than Madison, openly discussing the possibility of secession and "revolution and blood." The issue that Madison and Jefferson faced was an entire government of Federalists – the Supreme Court, the Legislature, and the Executive was pretty much all and entirely thoroughly in agreement on the necessity and legitimacy of the Alien and Sedition Acts. So what were they to do when the entire government seemed okay with something that seemed to them unconstitutional? Even when they managed to capture the executive branch when Jefferson was elected in 1800, the courts and the legislature were both for a while still in the control of the Federalists; and it would be a long, long time before the apparent Federalist control over the Supreme Court would come to an end.
It was in this atmosphere that Jefferson came to his idea of "departmentalism." In his opinion, it was not solely the Supreme Court's responsibility to determine whether laws or acts were strictly constitutional or not. Every single "department," every branch of government, must make these decisions, and never act if it thinks that acting would be against the Constitution. Jefferson considered the Constitution a "compact" between the states – and if any of them thought a law was unconstitutional, it was up to them to stand up and say so, act against that law if they felt it necessary, and perhaps even secede from the union. The significance of departmentalism can't be overstated. Under it, if the President disagrees with the Supreme Court about whether something is constitutional, the President is supposed to ignore the Supreme Court entirely; branches acts independently, without worrying about the Court's decisions about various things. That may sound like anarchy, but the balancing seemed to work for a long time. This was the legacy behind Andrew Jackson's famous refusal to follow the Marshall Court's decision in Worcester v Georgia.
posted by koeselitz at 7:28 AM on November 6, 2013
At this point, I'll take the devil I know. I can't imagine any scenario in which a new constitution would not be 10 times longer and give incentive to the worst actors available. The original constitution isn't perfect but it is mercifully brief and to its credit most of its content addresses the operational aspects of government rather than taking sides in 18c culture war issues.
posted by dgran at 7:31 AM on November 6, 2013 [3 favorites]
posted by dgran at 7:31 AM on November 6, 2013 [3 favorites]
I agree with Three Blind Mice and others who have said a change in ATTITUDE would be preferable to a new Constitutional Covnention.
* First would be a recognition that people change their minds and that their views evolve over time. Ideological purity is anathema to reason and intellectual thought.
* Second would be a recognition that compromise is not only ok, but necessary to the functioning of our republic. Vociferous debate is fine, but at the end of the day, you have to compromise and call it a day.
I wish I could say that I'm still surprised by people saying, "yeah, what we need is less ideology and more compromise from both sides," and then using the example of a law passed by one side that was almost completely identical to that proposed by the other 15 years prior and supported by (among others) the latter's candidate for President until pretty much literally the same time a black guy and a woman started talking about it as an option if they became President.
But I'm not.
posted by zombieflanders at 7:43 AM on November 6, 2013 [7 favorites]
* First would be a recognition that people change their minds and that their views evolve over time. Ideological purity is anathema to reason and intellectual thought.
* Second would be a recognition that compromise is not only ok, but necessary to the functioning of our republic. Vociferous debate is fine, but at the end of the day, you have to compromise and call it a day.
I wish I could say that I'm still surprised by people saying, "yeah, what we need is less ideology and more compromise from both sides," and then using the example of a law passed by one side that was almost completely identical to that proposed by the other 15 years prior and supported by (among others) the latter's candidate for President until pretty much literally the same time a black guy and a woman started talking about it as an option if they became President.
But I'm not.
posted by zombieflanders at 7:43 AM on November 6, 2013 [7 favorites]
Has the UK consulted Scandinavia as it's constructed its constitution
I wish we had. Not because the results would have been good, but because consulting a geographical abstraction about a non-existent document would have been very much in the best surreal spirit of British governance.
posted by Segundus at 7:50 AM on November 6, 2013 [12 favorites]
I wish we had. Not because the results would have been good, but because consulting a geographical abstraction about a non-existent document would have been very much in the best surreal spirit of British governance.
posted by Segundus at 7:50 AM on November 6, 2013 [12 favorites]
Hey, guys, how about us lot? (The Rest Of The World raises its hand)
re: flaws, Hypocrisy As A 'Key Strategic Resource'; viz. exorbitant privilege, cf. Ebay to expand the range of digital currencies it accepts & Gorton's battle of light and dark money
-Banking as Financial Terrorism
-Non-Euclidean Democracy
posted by kliuless at 7:52 AM on November 6, 2013
re: flaws, Hypocrisy As A 'Key Strategic Resource'; viz. exorbitant privilege, cf. Ebay to expand the range of digital currencies it accepts & Gorton's battle of light and dark money
As he concludes:also btw DeLong on Blinder's 'After the Music Stopped'The same problems as in the 19th century have reemerged, and the Federal Reserve and the government have rediscovered the modern equivalents, overcoming stigma, introducing stress tests, and trying to suppress information-revealing markets.While Gorton doesn’t say it directly, the implication is that the growth of the shadow banking sector as well as more government intervention is the system’s reflexive response to the need for more obscurity. That is, we need more obscure forms of money so as to continue to blur the lines of shared liabilities successfully — at least if the current monetary set-up is to withstand.
The financial crisis of 2007-2008 has led to widespread calls for “transparency.” Some blame the crisis on a lack of transparency. But, banking is inherently opaque. Were it not opaque it could not be able to produce money.
But Gorton also seems to be hinting somewhat strongly that if you don’t like that, the only other alternative is a modern revival of the free banking system, in which the harmonised unit of account is given up entirely in favour of greater transparency...
It’s easy to understand, for example, why during the 19th century, the harmonisation of the unit of account brought many benefits to trade and growth, since it made payment and settlement so much easier. In a manual world, a single unit of account cut down on paperwork, and more importantly helped to create a universal pricing framework, that was predictable and easy to understand. It was hugely beneficial for consumers, retailers and traders, as well as investors.
However, in the modernised digital world, that sort of harmonisation is not necessarily needed anymore. Not only is the fixed-price regime becoming outdated as retailers turn increasingly to personalised and dynamic pricing systems, foreign exchange systems have grown sophisticated and liquid. So much so, in fact, that the idea of constant valuation and exchange for private monies at the touch of a button is not implausible.
Sean Park of Anthemis, for example, has always predicted that the future will feature more currency issuers not less, foreseeing a world of millions of currencies in which values are continuously assessed with the help of a Star-Trek type “universal translator”. Individuals may even become currency issuers in their own right.
The upside of this sort of world would be the end of opacity, because inclusion would be dependent on the market’s ability to assess all details related to one’s solvency. The more open you are, the greater your purchasing power will be.
Perhaps this is the reason why the value of personal data is growing in its own right? Perhaps personal data is becoming a competing unit of account?
The downside, of course, is the privacy sacrifice that this would entail. We’re talking, after all, about the need to throw open the books for constant market assessment. The details of individuals’ private earnings capacity, debts, spending habits and more would need to be constantly available to all.
It’s clearly obvious that this level of transparency is not in the interests of everyone, since it makes everyone personally accountable for their own purchasing power. To date, many have been served far too well by the anonymous nature of the collective liability system of a universal money market, which has in a way been able to socialise away the information holes across member participants, or to society at large by means of government (largely to the benefit of those falling short or not playing by the rules).
When you think of it that way, you realise that an anonymous money framework such as the dollar system by definition depends on a collective function that can continue to obscure and socialise liabilities in this way. (A feature Bitcoin notably does not have.)
Which means we either continue to obscure and socialise financial information for the sake of retaining a truly fungible and anonymous bearer currency system — i.e. we allow the government to replace the private banking system’s money creation function — or we opt for the sort of transparency and personal accountability that kills the anonymous function of cash entirely.
It’s hard to see a third way.
(Though, we can’t help but think that the latter system would not be as forgiving to human errors or mistakes and would perhaps unfairly punish those who had ‘financially sinned’ unwittingly or accidentally early in their lives, and in so doing affected their credit rating for life. Consequently, to work, the system would need some form of embedded jubilee or rolling forgiveness system. The former dark system, on the other hand, would instead offer a form of perpetual salvation from ‘financial sin’ by means of the redistributive socialist function of the government guarantee. It does indeed get very biblical.)
However, accomplishing it is a political task. One point of view is that this political task will be easy for at least the next generation: even people who are twenty today remember the orgies of near-fraud and outright fraud committed in the housing, mortgage, mortgage-backed securities, and derivatives markets; not until they retire in 2060 will it be possible to pull the same type of tricks again on the same scale. The second point of view is that this political task will be impossible. According to this point of view, times like these in which income inequality are high are times in which finance finds it easy to buy Capitol Hill, and that although finance has a collective long-run interest in being regulated so that it does not overspeculate again financiers are too stupid to recognize this collective interest--or expect to make their financial pile, and take an apres moi le deluge. Certainly the root-and-branch Republican opposition in the Congress to the very existence and functioning of the relatively innocuous Consumer Financial Protection Board is a strong piece of evidence for the second point of view. And if that point of view is indeed correct, we are in awful trouble: only a successful commitment to an extraordinary educational effort to boost the numbers of the hypernumerate and so sharply reduce the education salary premium coupled with a severe strengthening of the progressively of the tax system could then create a politics and a Capitol Hill that would support the kind of financial regulation that 1929 taught us that we needed, and that 2008 taught us that we needed again.oh and...
-Banking as Financial Terrorism
-Non-Euclidean Democracy
Democracy is as old as Geometry, but unlike that Greek invention, Democracy did not evolve since Euclid times. While Geometry was constantly perfecting, undergoing revisions and discovering new concepts, Democracy was frozen in time.[note: migdal (and polyakov) independently discovered the higgs boson in 1965 when he was nineteen! (just finished sean carroll's _particle at the end of the universe_ :)]
After proven to be unstable against civil war in ancient Rome it was succeeded by monarchy for thousands of years until it was revived a couple of centuries ago. The great political leaders who did it had the best intentions and indeed, they brought vast amount of progress to the modern world.
Unfortunately, they left some old Greek bugs unfixed. Democracy as an algorithm for elections, fails way too often to keep these bugs neglected. It is high time to debug this algorithm, or, even better, totally redesign it...
- Let presidential candidates promote themselves and present their promises through the media.
- Let every citizen record his/her rating (between 0 and 100) for each presidential candidate.
- Pool the ratings across various voting groups (to be established either by Voting Committee or by Unsupervised Clusterization by rating correlation).
- For each candidate, weigh these group ratings with SLR coefficients, as computed after previous elections by fitting renewed National Data (in general, exponential moving average will be used to discount previous election data).
- Elect the president by simple majority of regression predictions.
- Do not prevent the same president from re-election.
posted by kliuless at 7:52 AM on November 6, 2013
Koeselitz, thanks for sharing that interesting history. As an observation, I do not see departmentalism as invalidating the obvious logic that the supreme court has judicial review, although I do accept that it has been debated throughout history and early on in our country's founding. This is the catch: the Supreme Court has the final say on constitutionality, but it doesn't have control over the other branches. The President or Congress may decide to ignore the Supreme Court, as is their right to do under separation of powers, but lower courts must abide by the Supreme Court, and they are the ones making decisions on a daily basis. Let's face it, our entire system is a house of cards anyway. If the President wanted to declare himself dictator and the armed forces went along with it, we'd no longer be a democracy. There's nothing holding our country together but our common willingness.
posted by PigAlien at 7:54 AM on November 6, 2013
posted by PigAlien at 7:54 AM on November 6, 2013
I mean, Obama is essentially Reagan. No, scratch that, some of his initial positions would have made Reagan hesitate. Had he been white and Republican, no one would know who Paul Ryan is. To the eternal frustration of most of his allies and critics from the left, his default position is compromise. A majority of his party in Congress basically spent the last decade compromising. Before that, the other President from his party thrived on compromise. Before that, his party in Congress and the Presidents they nominally opposed were known for compromise. To say that the problem is that "both sides do it" when it comes to not compromising requires ignoring almost the entirety of the last several decades of governing in this country.
posted by zombieflanders at 7:55 AM on November 6, 2013 [10 favorites]
posted by zombieflanders at 7:55 AM on November 6, 2013 [10 favorites]
But the brilliance of both - sides - do - itism is that you don't have to actually pay attention to things.
posted by PMdixon at 8:33 AM on November 6, 2013 [4 favorites]
posted by PMdixon at 8:33 AM on November 6, 2013 [4 favorites]
Maybe what is needed isn't a new Constitution, but a new Civil War where the left and the right could go their separate ways and leave each other in peace.
This would represent a considerable achievement.
I think you got confused somewhere around "war" and "peace".
"War will lead to peace, Bush says"
-- headline, Cleveland Plain Dealer, 27 feb 2003
posted by Herodios at 8:38 AM on November 6, 2013 [1 favorite]
This would represent a considerable achievement.
I think you got confused somewhere around "war" and "peace".
"War will lead to peace, Bush says"
-- headline, Cleveland Plain Dealer, 27 feb 2003
posted by Herodios at 8:38 AM on November 6, 2013 [1 favorite]
There's nothing holding our country together but our common willingness constitution.
posted by Herodios at 8:41 AM on November 6, 2013
posted by Herodios at 8:41 AM on November 6, 2013
The constitution does not hold anything together. It is a piece of paper. It is our mutual agreement to abide by it backed by the force of arms that holds us together. Fortunately, it seems unlikely our military would back a Presidential coup, or even a coup by a general, but stranger things have happened.
posted by PigAlien at 9:07 AM on November 6, 2013
posted by PigAlien at 9:07 AM on November 6, 2013
A Constitutional Convention in 2013 would be possibly the worst idea in the history of bad ideas.
That said, I don't think things will get better here without major, major reforms. (Proportional representation is my pet cause.) And since the government is already captured by the plutocrats, that won't happen without things getting much, much worse. I think they've figured out to dial in maximum oppression and wealth extraction with minimum unrest, so I expect things to simmer at "pretty fucking terrible but not entirely intolerable" for the rest of my life. FEELING CHEERY TODAY, CAN YOU TELL?
posted by entropicamericana at 9:19 AM on November 6, 2013 [2 favorites]
That said, I don't think things will get better here without major, major reforms. (Proportional representation is my pet cause.) And since the government is already captured by the plutocrats, that won't happen without things getting much, much worse. I think they've figured out to dial in maximum oppression and wealth extraction with minimum unrest, so I expect things to simmer at "pretty fucking terrible but not entirely intolerable" for the rest of my life. FEELING CHEERY TODAY, CAN YOU TELL?
posted by entropicamericana at 9:19 AM on November 6, 2013 [2 favorites]
me: “Has the UK consulted Scandinavia as it's constructed its constitution”
Segundus: “I wish we had. Not because the results would have been good, but because consulting a geographical abstraction about a non-existent document would have been very much in the best surreal spirit of British governance.”
Constitutions aren't necessarily documents. That's why I used the word "constructed."
posted by koeselitz at 10:01 AM on November 6, 2013
Segundus: “I wish we had. Not because the results would have been good, but because consulting a geographical abstraction about a non-existent document would have been very much in the best surreal spirit of British governance.”
Constitutions aren't necessarily documents. That's why I used the word "constructed."
posted by koeselitz at 10:01 AM on November 6, 2013
The constitution does not hold anything together. It is a piece of paper.
Well no, not precisely. It is a set of ideas that have been conveniently set in text (on parchment originally, by the way, not paper). Yet if every printed copy were destroyed, if every electronic copy were destroyed, the US Constitution would remain in force. See also Koeselitz above.
I don't think you and I actually disagree in any important way. I just think you see the situation as more fragile than I.
posted by Herodios at 10:41 AM on November 6, 2013
Well no, not precisely. It is a set of ideas that have been conveniently set in text (on parchment originally, by the way, not paper). Yet if every printed copy were destroyed, if every electronic copy were destroyed, the US Constitution would remain in force. See also Koeselitz above.
I don't think you and I actually disagree in any important way. I just think you see the situation as more fragile than I.
posted by Herodios at 10:41 AM on November 6, 2013
The Constitution permits conventional runoffs for Congress which avoid the the third-party-as-splitter dynamics; whether through a post general election vote (Georgia) or jungle primary (California) they are already used in places, and instant runoff / single transferable vote would almost certainly past muster if a state wanted to try one.
Proportional representation for the Senate would not be Constitutional becuase one at a time election is provided for explicitly.
State-by-state proportional representation is arguably Constitutional. The Constituiton doesn't prohibit multi-member districts, but no state has ever had them. Voting by party -- the traditional form of PR -- doesn't have any sanction in the Constitution, but then again the President has been indirectly elected by votes for party for 200+ years. Also, the Constitution does require that vacancies in the house be filled solely by special election, and a special election for one seat in a multi-member district could be awkward, but awkwardness is not unconstitutional. The greatest risk is in civil rights law; a state probably could not adopt PR for the House without a mechanism to guarantee at least as much black and Hispanic control over House seats as the ability to drW minority-majority districts provides now. That civil rights law could be repealed without a Constitutional amendment but it couldn't be unilateral state action.
posted by MattD at 12:05 PM on November 6, 2013
Proportional representation for the Senate would not be Constitutional becuase one at a time election is provided for explicitly.
State-by-state proportional representation is arguably Constitutional. The Constituiton doesn't prohibit multi-member districts, but no state has ever had them. Voting by party -- the traditional form of PR -- doesn't have any sanction in the Constitution, but then again the President has been indirectly elected by votes for party for 200+ years. Also, the Constitution does require that vacancies in the house be filled solely by special election, and a special election for one seat in a multi-member district could be awkward, but awkwardness is not unconstitutional. The greatest risk is in civil rights law; a state probably could not adopt PR for the House without a mechanism to guarantee at least as much black and Hispanic control over House seats as the ability to drW minority-majority districts provides now. That civil rights law could be repealed without a Constitutional amendment but it couldn't be unilateral state action.
posted by MattD at 12:05 PM on November 6, 2013
Maybe what is needed isn't a new Constitution, but a new Civil War where the left and the right could go their separate ways and leave each other in peace.
Or a more decentralized government, where each side could stick to their respective end of the sandbox and not bother the other. If there was a United Federation of Liberal States coordinating state law amongst themselves, a significant fraction of the US would have had single-payer healthcare for decades by now, without turning San Francisco into a burned-out husk.
posted by cosmic.osmo at 5:01 PM on November 6, 2013
Or a more decentralized government, where each side could stick to their respective end of the sandbox and not bother the other. If there was a United Federation of Liberal States coordinating state law amongst themselves, a significant fraction of the US would have had single-payer healthcare for decades by now, without turning San Francisco into a burned-out husk.
posted by cosmic.osmo at 5:01 PM on November 6, 2013
The US would be a very different place were it not for the extra-constitutional filibuster. Start there.
Not very long ago, back in the heady, innocent days of the Bush II administration, I remember seeing lefty college kids holding "Save the Filibuster" signs, in response to the Republican threat to eliminate the filibuster via the 'nuclear option' of a rules change in the Senate.
Silly Howard Dean, claiming that we'd be "blow[ing] up 200 years of Senate history." Clearly, the filibuster is "A minority of senators [...] blocking the will of the Senate."
Every time someone proposes a change that would make things easier for the party in power, they should be forced to watch a highlight reel from the last time things were the other way around. ("Hominem te esse memento" whispers the Fox News anchor.)
posted by Kadin2048 at 11:34 PM on November 6, 2013 [1 favorite]
Not very long ago, back in the heady, innocent days of the Bush II administration, I remember seeing lefty college kids holding "Save the Filibuster" signs, in response to the Republican threat to eliminate the filibuster via the 'nuclear option' of a rules change in the Senate.
Silly Howard Dean, claiming that we'd be "blow[ing] up 200 years of Senate history." Clearly, the filibuster is "A minority of senators [...] blocking the will of the Senate."
Every time someone proposes a change that would make things easier for the party in power, they should be forced to watch a highlight reel from the last time things were the other way around. ("Hominem te esse memento" whispers the Fox News anchor.)
posted by Kadin2048 at 11:34 PM on November 6, 2013 [1 favorite]
I agree with the general premise of this article: I think a parliamentary system is more functional than the American system. And I think the American system, as it stands right now, is really broken. But I also can't imagine that trying to re-write the constitution now, as other people here have said, would be a particularly good idea.
I also think there are a lot of smaller things (relatively speaking) that could be changed that would make our government a lot more functional. In an ideal world, I would like to see our government make the following changes:
1. Do away with the filibuster. Fuck that thing. I don't care if Democrats end up in the minority one day and wish they had it. At the very least, if no one has the balls to totally get rid of it, make anyone who wants to filibuster actually stand up on the floor and do it. No more of this threatening to filibuster = same thing as actually filibustering.
2. Re-district all House districts so that they're actually fair and somewhat rectangular, instead of being shaped like pterodactyls and dying daises and space ships.
3. There should be campaign spending limits: I don't care how it's done. There are better uses for the millions of dollars spent on ads that don't change anyone's mind. And presidential elections should not be allowed to drag on for 2 years. 6 months from the primaries to the main election is enough.
That's where I would start, if I ran the zoo.
posted by colfax at 6:01 AM on November 7, 2013 [1 favorite]
I also think there are a lot of smaller things (relatively speaking) that could be changed that would make our government a lot more functional. In an ideal world, I would like to see our government make the following changes:
1. Do away with the filibuster. Fuck that thing. I don't care if Democrats end up in the minority one day and wish they had it. At the very least, if no one has the balls to totally get rid of it, make anyone who wants to filibuster actually stand up on the floor and do it. No more of this threatening to filibuster = same thing as actually filibustering.
2. Re-district all House districts so that they're actually fair and somewhat rectangular, instead of being shaped like pterodactyls and dying daises and space ships.
3. There should be campaign spending limits: I don't care how it's done. There are better uses for the millions of dollars spent on ads that don't change anyone's mind. And presidential elections should not be allowed to drag on for 2 years. 6 months from the primaries to the main election is enough.
That's where I would start, if I ran the zoo.
posted by colfax at 6:01 AM on November 7, 2013 [1 favorite]
The stuff in point 3 would all require a Constitutional Amendment so seems rather unlikely.
posted by Justinian at 2:04 PM on November 7, 2013
posted by Justinian at 2:04 PM on November 7, 2013
Why in God's name would fair districts be rectangular?
posted by koeselitz at 8:36 PM on November 7, 2013
posted by koeselitz at 8:36 PM on November 7, 2013
(And what does shape have to so with fairness in districting?)
posted by koeselitz at 8:37 PM on November 7, 2013
posted by koeselitz at 8:37 PM on November 7, 2013
Also, I really don't think the filibuster is "extra-constitutional," as professor plum called it. Congress is naturally and constitutionally charged with the governance of its own operations.
Moreover, a constitution isn't what's written; it's the settled traditions surrounding the functioning of the government. When FDR ran for a third term, and when he proposed to add justices to the Supreme Court in order to get more favorable results, people (perhaps rightly) protested that we was overturning centuries of Constitutional tradition even if those things were strictly and technically within the letter of the document. And better examples can be given; judicial supremacy isn't in the written Constitution, for example, but at this point it's taken for granted as Constitutional tradition.
If the filibuster is a fundamental part of the way the Constitutional order is preserved, then it's fair to say it is part of the Constitution. Granted, that isn't the same as saying it's in the written document; but it's legitimate to say that perhaps it is part of the Constitutional order and should therefore be preserved.
We have a very complex and nuanced Constitutional order in America today. I think that has to be taken into account if we want to do something as drastic as changing it fundamentally.
posted by koeselitz at 8:46 PM on November 7, 2013
Moreover, a constitution isn't what's written; it's the settled traditions surrounding the functioning of the government. When FDR ran for a third term, and when he proposed to add justices to the Supreme Court in order to get more favorable results, people (perhaps rightly) protested that we was overturning centuries of Constitutional tradition even if those things were strictly and technically within the letter of the document. And better examples can be given; judicial supremacy isn't in the written Constitution, for example, but at this point it's taken for granted as Constitutional tradition.
If the filibuster is a fundamental part of the way the Constitutional order is preserved, then it's fair to say it is part of the Constitution. Granted, that isn't the same as saying it's in the written document; but it's legitimate to say that perhaps it is part of the Constitutional order and should therefore be preserved.
We have a very complex and nuanced Constitutional order in America today. I think that has to be taken into account if we want to do something as drastic as changing it fundamentally.
posted by koeselitz at 8:46 PM on November 7, 2013
Why in God's name would fair districts be rectangular?
So voters get a square deal, I guess.
If the filibuster is a fundamental part of the way the Constitutional order is preserved, then it's fair to say it is part of the Constitution.
I fear you may be on the slippery slope to saying that anything that actually happens a lot is constitutional. Once you get there, in fact once you move away from saying the Constitution is a recognised document, it becomes impossible to say for sure whether anything is constitutional or unconstitutional (granted it's not always easy anyway), and the whole issue becomes nugatory. I mean, that is the entire point of writing the thing down in one document in the first place, isn't it?
posted by Segundus at 5:26 AM on November 8, 2013
So voters get a square deal, I guess.
If the filibuster is a fundamental part of the way the Constitutional order is preserved, then it's fair to say it is part of the Constitution.
I fear you may be on the slippery slope to saying that anything that actually happens a lot is constitutional. Once you get there, in fact once you move away from saying the Constitution is a recognised document, it becomes impossible to say for sure whether anything is constitutional or unconstitutional (granted it's not always easy anyway), and the whole issue becomes nugatory. I mean, that is the entire point of writing the thing down in one document in the first place, isn't it?
posted by Segundus at 5:26 AM on November 8, 2013
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posted by koeselitz at 8:15 PM on November 5, 2013 [4 favorites]