The pre-democratic American Constitution

american-constitution

 

Discussions about the American political system often seem too…exact. The foundation of law and source of political norms in the United States is portrayed as entrenched, and the Constitution set up as laying out the politics of today in detail.

For instance, the statement “America is a two-party system”. Most facts about the modern American political system are codification through improvisation. It’s because the United States has a pre-modern, pre-democratic Constitution.

Sitting at the core of American law is an archaic foundation, that we spend a lot of time pretending isn’t a dead albatross that we have to drag around. One school of legal thought is that because the Constitution is so short and vague, it can evolve with the times. Whether this is because it is a living document, or that the wisdom of the Framers is seen as a matter of political opinion. Yet the Constitution has not aged well. Modern America is held together with legal gaffer tape.

So, what is the Constitution not equipped to handle? Competitive elections (so, democracy as we know it today). Political parties. Interest groups. Money in politics. A society in which people other than white landowners had value. The welfare state. Modern monetary policy. Economic integration. Cultural shifts on civil rights based on sexual orientation, gender identity, and sexual choice. The Industrial Revolution. Multilateral treaties and international cooperation.

The vagueness has often not been a benefit at all. There is nothing in the text that says women are allowed to vote, but it took a constitutional amendment to specifically make that a right. The Constitution is not adaptable if its general principles must be updated by legally binding alteration.

In practice, the Constitution is dragged into each new era by common law. But this means that the decisions of a small, homogeneous judicial clique decides what are new rights. And there’s nothing to have reversals that go in the opposite direction of progress. Judges essentially create a substantial portion of the law from whole cloth- given the vague nature of their source material, rather than giving a yes/no decision, they have to create new standards.

Now a constitution need not be updated every year, but basically no other constitution in the world predates the basic norms of how democracies govern.

This is hardly an original view. There has been one substantial effort to reconcile the 18th century worldview with principles recognizable in 2016. Franklin D. Roosevelt’s Second Bill of Rights was proposed as a way to deal with one of the most fundamental shifts in American society- that is, economic rights that aren’t directly related to property. The proposal was nothing left than a complete revolution in the role of government. Most of the ideas in the Second Bill of Rights have never been implemented and may never will.

Besides economic rights, no procedures are supplied for how American democracy should work. The Framers willfully refused to regulate party politics, so when partisanship erupted, the rules were improvised. But the well is even drier here, because instead of vague principles, there’s just…nothing. America is a two-party state in practice, but it’s a zero party state in fundamental law.

It is frustrating that many all but worship the Constitution, while ignoring the problems caused by its continued existence. It feels like we’re playing blackjack, but using rules from a book about bridge.

One thought on “The pre-democratic American Constitution

  1. Pingback: Our American baggage: a July 4 reflection – Unspoken Politics

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