The Constitution is Showing Its Age

The world around us changes every day. Thus, understanding facts like this, Thomas Jefferson himself was quoted as saying;

“I am not an advocate for frequent changes in laws and Constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when he was a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

The primary issue with the US system is that it is showing its age.

The US Constitution has had staggeringly few amendments since its inception, with fully 1/3rd of them being ones passed effectively as part of the constitution itself, while many of the others are there for relatively minor procedural issues (like the 27th), extremely niche issues (2 of the 27 were dedicated to starting and ending prohibition) and while there were some that can be considered as sweeping, modernizing reforms — universal suffrage, lowered voting age, clarifying presidential succession, ending slavery, etc, etc. The document itself is still perpetually behind the times. Not only has the world changed a lot in 250 years, so has both our understanding of democracy and, importantly, the understanding of the vulnerable pressure points of a democracy.

The limited nature of amendments means that so many of the assumptions upon which American democracy is based are not constitutionally established. The biggest point of vulnerability in this regard is probably the courts. Right now, the only thing that stops a party from instantly packing the Supreme Court is the certainty that if the other side gains the presidency and the senate, they can do the exact same thing. Nowhere is 9 justices established in the constitution and the house isn’t part of the process at all. Any party that gained a strong enough support in the senate and held the presidency could, relatively easily, pack the court with whoever they liked and in one stroke, effectively end the ability of judicial review to control the other branches. For that matter, they could stack the court just to have the court remove itself from the equation — even the concept of judicial review comes from court precedent, not from a straight constitutional grant.

These assumptions have piled up in every branch, every department, every organization and every party. The entire system is predicated on the idea that everyone involved in it is dedicated to the survival of the system in roughly its current form. Now, that is to an extent true in every democracy — a democracy state could have the best constitution ever written and it would fall if the people within the system were determined. But the US, with its old, infrequently amended and far from technocratic constitution is more vulnerable than almost any other healthy democracy because it relies so much more heavily on those unwritten assumptions. When a government is doing that, it’s almost better to not have a written constitution at all because the constitution not containing these things provides a plausible political argument for their removal in the court of public opinion.

It can be said the worst example of this is Congress. The House of Representatives was capped at an arbitrary number (435) by the Permanent Reapportion Act instead of the former mandate of no more than 30,000 persons per representative, so as the population increases, we have to play this game of shuffling representatives around instead of adding new ones to reflect the growing country; this weakens the representative power of the larger states compared to the more rural ones. This is even more exacerbated with the Senate, which was originally conceived when the states were more autonomous entities within the country — their appointment came from the state legislatures, not via direct elections. With the passage of the 16th amendment, this has been done away with, so now it’s just another direct election like the House of Representatives.

Put together — along with the electoral college, which more or less mirrors the composition of Congress — you are looking at a system that is getting more and more out of alignment with the popular vote as urbanization increases and people flock to more highly-populated regions, up until the point where two-thirds of the population will be represented by only 30 senators in twelve years. That’s huge: one third of the population will have not just filibuster-proof, but veto- and impeachment-proof control over the Senate; while it’s not a 1-to-1 relation between size of the state and which party it usually votes for, the implication is that we’re increasingly looking at effective minority rule in the US very soon, far more than just with the electoral college giving the minority popular vote winner the presidency.

That is another issue, definitely. In particular, the failure of the founders to consider the perverse incentives of the statehood system and the Senate created major problems. The reason there are two Dakotas, for example, isn’t cultural, geographical or especially logical — it was an explicitly political move designed to give Republicans in the late 19th century 4 likely Senate seats instead of 2. It gave a REALLY good reason to fragment the otherwise underpopulated plains states. A slightly more modern approach likely either would have made the numbers required for statehood rise as the population did (say, for example, pinning the requirement to a percentage of the highest or average state) or to use a weighted system for apportioning senators instead of a completely equal system. Canada has something like this, where their smallest provinces are still over represented in the Senate (albeit their Senate is far less relevant), but aren’t granted total equality with the largest ones. A system where the largest states, for example, had 4 senators and the smallest had 1 would still vastly favor smaller states, but wouldn’t be so disproportionate that California has identical representation to Wyoming.

And sadly, this very fact is being used as an argument against giving Puerto Rico and Washington DC statehood: they’d add two Senate seats each that would, in all likelihood, go to Democrats, meaning that the Senate would be controlled by the Democrats now (54–52 instead of 48–52). Puerto Rico is an especially-egregious case: it’s got a higher population than roughly 20 of the states, yet because Republicans don’t want to lose their senatorial advantage, they continue to not have a full voice in Congress.

Now you might ask; Why do you think they ignored this? Topics like slavery and statehood were omnipresent issues. Jefferson (correctly) regarded the Missouri Compromise as foreshadowing a civil war.

I didn’t say they didn’t have their reasons for ignoring this, only that is was, in fact, ignored. The end result is a dated document that creates large and increasingly problematic fissures. Part of that is likely because the founders themselves never assumed it would last this long. They designed an amendment process that was, at the time, difficult but far from impossible. It simply failed to scale well in a country that has 50 states instead of 13 and thus basically ensures that no large-scale reform is likely to be attempted because anything too significant will also be too controversial. The only reason the system eventually managed to settle the slavery issue was that the Southern states weren’t there to vote against it and it was STILL an incredibly near-run thing. A modern-day amendment has basically been relegated to relatively incremental change (like a slight lowering of the voting age), obvious numbskull stuff there isn’t really a whole lot of reason to oppose and those rare, lightning in a bottle moments where the political and cultural pressure is so great that change is eventually forced through (women’s voting, prohibition/its repeal and civil rights, mainly).

At the end of the day, the problem with the constitution is its inability to keep up with the culture of the days. Matters arise that require legislation, yet no effective process exists to allow that change. This change will first require a major change in our country as a whole, one that may be painful.