In the US, the Constitution plays the role of sacred scripture and the word unconstitutional has the force of a curse. The origin story of this document begins in Philadelphia in 1787 with the Constitutional Convention. Jefferson and Adams, ambassadors to England and France, did not attend; Hamilton and Franklin did; Washington presided. It was James Madison who took the lead and addressed the problem of creating a strong central government that would not turn autocratic. Indeed, Madison was a keen reader of the Roman historian Tacitus who pitilessly described the transformation of Roman Senators into sniveling courtiers with the transformation of the Roman Republic into the Roman Empire. Madison also drew on ideas of the Enlightenment philosopher Montesquieu and, in the Federalist Papers, he refined Montesquieu’s “separation of powers” and enunciated the principle of “checks and balances.”
A balance between large and small states was achieved by means of the Connecticut Compromise: a bicameral legislature composed of the Senate and the House of Representatives. As a buffer against “mob rule,” the Senators would be appointed by the state legislatures. However, the House created the problem of computing each state’s population for the purpose of determining representation. The resulting Three-Fifths Compromise stipulated that 3/5ths of the slave population in a state would count toward the state’s total population. This created the need for an electoral college to elect the president, since enslaved African-Americans would not each have three-fifths of a vote!
In September 1787, a modest four page document (without mention of the word Democracy, without a Bill of Rights, without provision for judicial review but with guidelines for impeachment) was submitted to the states; upon ratification the new Congress was seated and George Washington became President in the spring of 1789.
While the Constitution is revered today, it is not without its critics – it makes it too hard to represent the will of the people to the point where the American electorate is one of the most indifferent in the developed world (26th out of 32 in the OECD, the bottom 20%). Simply put, Americans don’t vote!!
For example, the Constitution provides for an Amendment process that requires ratification by 3/4ths of the states. Today the vestigial Electoral College makes a vote for president in Wyoming worth twice that in Delaware: both states have 3 electors and Delaware’s population is twice that of Wyoming. If you do more math, you’ll find that a presidential vote in Wyoming is worth 3.5 times one in Brooklyn and nearly 4 times one in California. Change would require an amendment; however any 13 states can block it and the 13 smallest states, with barely 4% of the population, would not find it in their interest to alter the current system.
Another issue is term limits for members of Congress, something supported by the voters. It can be in a party’s interest to have senators and representatives with seniority so they can accede to powerful committee chairmanships; this is the old Dixiecrat strategy that kept Strom Thurmond in the Senate until he was over 100 years old – but then the root of the word “senator” is the Latin “senex” which does mean “old man.” The Constitution, however, does provide for a second way to pass an amendment: 34 state legislatures would have to vote to hold a constitutional convention; this method has never been used successfully, but a feisty group “U.S. Term Limits” is trying just that.
The Constitution leaves running elections to the states and today we see widespread voter suppression, gerrymandering, etc. The lack of federal technical standards gave us the spectacle of “hanging chads” in Florida in the 2000 presidential election and has people rightly concerned about foreign interference in the 2020 election.
Judicial review came about by fiat in 1803 when John Marshall’s Supreme Court ruled a section of an act of Congress to be unconstitutional: an action itself rather extra-constitutional given that no such authority was set down in the Constitution! Today, any law passed has to go through an interminable legal process. With the Supreme Court politicized the way it is, the most crucial decisions are thus regularly made by five unelected, high church (four Catholics, one Catholic become Episcopalian), male, ideologically conservative, elitist, lifetime appointees of Republican presidents.
The founding fathers did not imagine how powerful the judicial branch of government would become; in fact, Hamilton himself provided assurances that the judiciary would always be the weakest partner in his influential tract Federalist 78. However, a recent (2008) malign example of how the Constitution does not provide protection against usurpation of power by the Supreme Court came in District of Columbia v. Heller where over two hundred years of common understanding were jettisoned when the reference to “militia” in the 2nd amendment was declared irrelevant: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” What makes it particularly outrageous was that this interpretation was put forth as an example of “originalism” where the semantics of the late 18th Century are to be applied to the text of the amendment; quite the opposite is true, Madison’s first draft made it clear that the military connection was the motivating one to the point where he added an exclusion for pacifist Quakers:
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.”
Note too that Madison implies in the original text and in the shorter final text as well that “the right to bear arms” is a collective military “right of the people” rather than an individual right to own firearms – one doesn’t “bear arms” to go duck hunting, not even in the 18th Century. As a result of the Court’s wordplay, today American children go to school in fear; the repeated calls for “thoughts and prayers” have become a national ritual – a sick form of human sacrifice, a reenactment of King Herod’s Massacre of the Innocents.
Furthermore, we now have an imperial presidency; the Legislative Branch is still separate but no longer equal: the Constitution gives only Congress the right to levy tariffs or declare war but, for some administrations now, the president imposes tariffs, sends troops off to endless wars, and governs largely by executive order. All “justified” by the need for efficient decision-making – but, as Tacitus warned, this is what led to the end of the Roman Republic.