What comes after the Constitution? Can we see the outline of a “Mark 3” version of the United States?

Let’s have a moment of silence in memory of the US Constitution.  Its place in our hearts fades away, generation by generation, leaving nothing but an empty space.  As the controlling instructions for our government, it has become a “living document” whose primary role is to die, so that our ruling elites have more freedom to arrange our affairs to suit their needs. This post is a continuation of a series speculating about the future of our Constitution; at the end are links to the previous chapters (most esp this one).

Our burning constitution

In addition to our weak allegiance to our political regime — and the liberties it provides — there are two forces killing the Constitution:

  • The government’s increasing power, which the Constitution was designed to shackle.
  • Demographic change

The history of the Constitution, the long fading away

The United States has evolved away from a Constitutional regime since its founding.   The original conception of the government, as set forth in the Constitution, was limited.  Much of the Constitutional machinery was intended to restrain the government; the Bill of Rights was intended to provide additional safeguards to limit the government’s power.  This experiment has clearly failed, as a brief look at our clearly shows.

  1. President Jefferson — the original advocate for limited government, found it too constraining in 1803 when making the Louisiana Purchase.
  2. Chief Justice Marshall found its delegation of power to the Courts to be inadequate, rewriting it in 1803 with Marbury vs. Madison.
  3. It was reshaped like Play-Doh during the New Deal.
  4. All wartime Presidents have found it inconvenient, and used the necessity of war to extend their powers

Now we enter a new period of stress, during which I expect our government to assume new forms and powers — as it has done in similar periods in our past.  To do so the Constitution must again be trampled on and ignored.

Demographics undercutting the Constitution

Demographic change has undermined the Constitution order in several ways.

  • Population growth
  • Concentrating population

The nature of a representative democracy — the degree and manner in which elected officials represent citizens, depends to a large extent on the number of people voting per official (see Wikipedia for size of the House).

  • In 1789 the United States had approx 5 million people and 120 representatives:  approx 41 thousand people per member (only a fraction of them could vote, of course).
  • The population was 92 million in 1911 when the House was increased to its current number of 435 members; each represented approx 211 thousand people (again, only a fraction of them could vote).
  • We still have 535 in the House, but now representing 300 million people, approx 690 thousand people per member.

As the number of people “represented” by each official increases, they naturally grow more remote from us.  The rulers grow in status and power — and hence inevitably in wealth (legally or otherwise).  The other side of the equation:  each citizen’s vote loses strength.  The individual’s ability to affect the machinery diminishes.  Disinterest in the system, even alienation, easily follows.  Eventually the regime’s legitimacy erodes.

Far worse is the critical weakness in the Senate’s design.  As a result of the Great Compromise during the Constitutional Convention, every State has two votes.  Wyoming, with 523 thousand people.  California, with 36 million.  The ten largest States have more people than the remaining 40.  The fifth largest, Illinois, has more people than the 11 smallest States.  (See Wikipedia for population by State)

Worse, this disparity is growing as population slides from the rural center to the coasts.  These rotten boroughs (to borrow a term from 19th century UK) increasingly shape US legislative action.  During good times there is plenty of swag to divide among everybody’s constituencies, and policy choices are among nice alternatives.  During difficult times such an injustice, a violation of our basic principles, might become intolerable.

Yet the economic cost to the low population States could be severe.  Today they feast off their disproportionate share of the Federal government’s largess.  Living off their own income will be a substantial and painful change.  How will they weigh their pocketbooks vs. America’s core principles?  Under Article V of the current Constitution this cannot be changed without the consent of each state losing its “equal Suffrage in the Senate.”

Looking ahead

The Articles of Confederation was the Mark I version of our political Regime.  The Constitution is the Mark II.  There will be a Mark III.  It is not too soon to begin thinking about the Mark III.  Our Constitution is just an idea, inherited from the Founders.  We created it, and its death will give us the experience to do better with the next version.

These stresses on our political regime can only grow.  We can proactively reform the structure, using the slow but sure process of amending the Constitution so that it better meets our needs.  This process requires wisdom to craft good amendments and the patience to build the necessary consensus.  The result might be radically different than our current political system.

Or we can wait until the problem becomes a crisis, like an overweight couch potato who bursts his buttons in public.  There are so many ways that could work out poorly.  Dissent or even paralysis at a critical moment.  Panicky, rushed, poorly conceived changes.  A few minutes thought can spin some nightmare scenarios.  Perhaps worst nightmare would be an new Convention, called under Article V:

The Congress, whenever 2/3 of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of 2/3’s of the several States, shall call a Convention for proposing Amendments,

which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of 3/4 of the several States, or by Conventions in 3/4’s thereof, as the one or the other Mode of Ratification may be proposed by the Congress;

Provided that no Amendment which may be made prior to the Year 1808 shall in any Manner affect the 1st and 4th Clauses in the 9th Section of the 1st Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

An important thing to remember when fixing the Constitution

From If We Can Keep It, by Chet Richards (review here):

We need to be careful, though, that in changing it, we move closer to ideals stated in the Preamble, which, because it may have been a while since many readers have thought about it, is worth repeating:

We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


How will this play out?  The end of the Constitution will be like a singularity in astrophysics.  We cannot see beyond it, because we do not see or understand the choices that will determine our fate — let alone how we will choose.  It also resembles a singularity in that what lies on the other side is unimportant until one survives the passage through it.

Political regimes come, and they leave. The Constitution has brought incredible freedom and prosperity to America, but that does not make it eternal. As Queen Gertrude says to Hamlet (Act I, scene 2):

Good Hamlet, cast thy nighted colour off,
And let thine eye look like a friend on Denmark.
Do not for ever with thy vailed lids
Seek for thy noble father in the dust:
Thou know’st ’tis common;
all that lives must die,
Passing through nature to eternity.

** The movie “The Matrix” prominently featured a version of this: “All that lives must die.”

For more information

If you liked this post, like us on Facebook and follow us on Twitter. To read other articles about these things, see the FM reference page on the right side menu bar.  Of esp relevance to this topic:America – how can we reform it?

Some other posts about the Constitution and our government:

  1. Forecast: Death of the American Constitution, 4 July 2006
  2. The Constitution: wonderful, if we can keep it, 15 February 2008
  3. Congress shows us how our new government works, 14 April 2008
  4. See the last glimmers of the Constitution’s life…, 27 June 2008
  5. Remembering what we have lost… thoughts while looking at the embers of the Constitution, 29 June 2008
  6. A report card for the Republic: are we still capable of self-government?, 3 July 2008
  7. Another step away from our Constitutional system, with applause, 19 September 2008

30 thoughts on “What comes after the Constitution? Can we see the outline of a “Mark 3” version of the United States?”

  1. The amount of un-elected officials staffing Legislative and Executive entities is hugely important.
    Neither of the major parties seem aware of State governments in developing policy. Frightening.

  2. How will this play out? The end of the Constitute will be like a singularity in astrophysics.

    Have any of your posts elaborated on and supported this assertion? It seems to me that the rules have long since broken down and still we trudge on. The typical American has no clue how far we’ve drifted from the vision of our founders. We proudly point to our Constitution as a symbol of our freedom without the slightest idea that huge swaths of it have been null and void for many decades.

    With that in mind, pretend you’re one of the political elite. Why would you throw away a system that gives you wide latitude while maintaining the illusion of limited government? You wouldn’t. The only way the system goes through a fundamental change is if the working class demands it. Why do you assume that will happen when the working class’s answer to everything is more government power?
    Fabius Maximus replies: By the numbers…

    (1) “Have any of your posts elaborated on and supported this assertion?”

    * The 3rd sentence says “This post is a continuation of a series about the Constitution; at the end are links to the previous chapters.”
    * As it says on the About page (III, #2): “Most of these posts discusses things on the edge of our knowledge and theory. For clarity, forecasts are stated in somewhat black and white terms. You can mentally insert the necessary qualifiers, the most important of which is “future is the unknown — all we can do is guess.”
    * This is probably the most certain (or perhaps the only certain) forecast in this post. Since history shows that the consequences of any social change are difficult to anticipate, the effects of such large-scale change are almost certainly unknowable.

    (2) “Why would you throw away a system that gives you wide latitude while maintaining the illusion of limited government?”

    This is a variant of Zeno’s theory of motion: undesired change is impossible! Unfortunately for this pleasant delusion, one of the great realities of history is that stuff happens. As I state — several times! — in this post, a period of stress often forces social evolution. Change happens whether folks, rulers or peons, want it or not.

  3. “This post is a continuation of a series about the Constitution; at the end are links to the previous chapters.”

    Yes, I glanced through them. I’ve found several places where you speculate/predict/assert that such a singularity will occur. I haven’t found anywhere where you elaborate on why you believe that. If I’ve missed it, please direct me to it.

    The accuracy rate of a forecast will obviously drop as you project further out, but human nature is what it is. We’ve faced more than a few crises before and we always seem to turn to interventionism. This should be the default prediction.

    This is a variant of Zeno’s theory of motion: undesired change is impossible! Unfortunately for this pleasant delusion, one of the great realities of history is that stuff happens. As I state — several times! — in this post, a period of stress often forces change. Whether folks, rulers or peons, want it or not.

    I get that there will be a ton of micro- level change. We may see unprecedented turnover of representatives. We may even one or both major parties fall into obscurity. We may see an unprecedented number of laws and amendments. What I don’t see is a scenario where some person or people come to power and then methodically reduce the size and scope of government. The only scenario where that’s likely is some variation of a popular revolt and I don’t see how that’s likely when interventionism is so ingrained in our national psyche.

    Can you imagine any other scenarios where we would move away from interventionism?
    Fabius Maximus replies: I can imagine lots of things. These “big picture” guesses are not intended as bets or “assertions.” To repeat what I have said so often in many ways: these are speculations about the unknowable, to help us understand the magnitude of today’s events and open our imaginations to the possibility of extreme outcomes.

    As for reduction of the government’s size, that is easy to imagine. One scenario has the government defaulting on it promises (e.g., pensions, insurance schemes to numerous to mention) and proving unable to provide stability and prosperity. Failed Gods are replaced, often by something quite different. This scenario would take decades to play out, but is IMO a contender. The Blue Fairy will not wave her wand and fund the government’s $50+ trillion (and growing) of liabilities. Many things become possible on the road to resolving those promises.

  4. Great post, once again. But I disagree with you four numerical points at the beginning. The fact that the constitution was deemed “too constraining” or “inadequate” is a demonstration of its regulatory function. This regulatory function, in a simple kind of way, is to oppose certain natural forces; such as the natural force which causes a war-time president to clash with the constitution. It is natural for them to do that. A more obvious example is the separation of powers and the system of checks and balances in terms of the manner by which these measures prevent the natural impulse of improper coalitions or hegemonies between certain bodies of government.

    For one, believe it or not, even if at moments it operates in an invalid way (ie, slavery, or other, better examples), prior to its invalidity is its bindingness. Theoretically the document could hold absurd claims and still be binding upon us, because it is the only ultimate sovereign of the country; that is the final rule of law. People tend to mistakenly characterize that the inadequacies of the constitution are somehow not inevitable because they labor under this Enlightenment dogma that somehow the document could ever attain some kind of finality or completion, or that its intent and aspirations were ever such (which is the view of so-called “originalists”). As a reaction to this mythical notion of completion, most 20th century ideas about constitutional law tended to focus more on the intrinsically pragmatic nature of the document, which you seem to dislike or view as unconstrained interpretations. Many often mistake that just because the document itself is pragmatic that it represents a blank check warrant to rewrite it at every turn, giving way to a million slippery slope arguments on almost every constitutional issue that comes our way. But this too is false because its pragmatic functions are typically well outside the inner boundaries of basic, binding rights and measures.

    And as for the math of representation, I would simply say that the constitution is not the ONLY regulatory system of the country, as it really only serves a passive function. Human communities evolve to encapsulate and control the dangers of changing demographics and disproportionate representation moreso than people are aware of or would prefer to admit. Granted, this is an ad hoc kind of evolution, but if it gets that reductive then we have to begin asking ourselves if we ever spelled out our own personal constitution, or if you ever spelled one out amongst your family or friends if it is incumbent upon every community of people to have well-enunciated laws. That would be absurd. Existence is prior to essence as they say, and for ninety-percent of our lives we think certain ad hoc rules into existence rather than subscribing to prior, deductive truths. Shouldn’t our laws accommodate for the human situation?

    Again, great post!

  5. these are speculations about the unknowable, to help us understand the magnitude of today’s events and open our imaginations to the possibility of extreme outcomes.

    I’m fine with all of that. There will always be a point in the future beyond which there’s no point in making predictions. What I don’t buy is your singularity analogy. The eventual outcome is very important. As a young Gen-Xer, I’ve already come to terms with the fact I’m going to live through some painfully turbulent times. I’ll gladly take whatever pain is necessary to produce an outcome that is far more stable this the current system. I could die a happy man with that legacy. If, however, we go through a ton of pain just to repeat the same mistakes, that would be a tragedy.

    One scenario has the government defaulting on it promises (e.g., pensions, insurance schemes to numerous to mention) and proving unable to provide stability and prosperity.

    With a fiat currency, it won’t technically default unless it wants to. It can always press the hyperinflation button and embark on a PR campaign to convince everyone that it was the only option. If the PR blitz succeeds, the Powers That Be will retain their power. If they fail, you’ll have some variation of the worker revolt that I already acknowledged.
    Fabius Maximus replies: Do you think people are stupid? Hyperinflation is a default on the government’s promises, and everybody will know that.

    “The eventual outcome is very important.”

    Why does this conflict with my singularity analogy?

  6. In this, the election just past, this writer met many people who stated, in effect, that we need a third option, some sort of none-of-the-above option on the ballot which obligates the parties to submit new candidates until one wins a clear victory. Moreover, some voters expressed a wish for a more parlimentary system, in which a no confidence vote could dissolve a government and compell new elections.

    Another point: your observations about the changing demograhics of the nation, the shift from rural to urban with a corresponding shift in wealth concentration, and the rising number of voters per representative, are excellent food-for-thought. This begs the question, in our more and more Balkanized country, what measures can be taken to bond Americans more closely together instead of separating them on the basis of grievance, income distribution, or other criteria?
    We are entering, as you have pointed out (or more accurately, may have already entered) an era of enforced austerity, in which once-pentiful resources will be less, quite possibly much less, abundant than in times past. History is replete with examples of nations and peoples who buckled under such stresses, i.e. Weimar Germany, Imperial Rome, etc. What measures will be necessary to prevent such an occurance? As any decent biologist knows, when environmental stresses become too great in nature, many species eat their young or otherwise kill off their own. The same happens among people, as ugly as it is to contemplate such a thing. Numerous examples in war-torn Africa over the last forty years attest to this unfortunate fact. Civil society is a more fragile thing than many of us know.

  7. Your quote from Hamlet is ironically apt. Hamlet’s mother is asking him to overlook her adultery and the murder of his father because time marches on. ‘Denmark” in the quote is both the country and the king, or in this case usurper.

    To me it signifies that if we let the constitution pass into history, we need to be very mindful of what we will be getting in exchange. I think a majority of Americans would be very skeptical of any politician who broaches this subject.

    My guess would be that the constitution will be disassembled piece by piece slowly over time until it is unrecognizable. The current administration has done its part. We will see what the next administration does. And I will be just as skeptical if we have a revival, some years hence, of constitutionalists swept into office to preserve the founding father’s vision. I would fear it to be a cover story for something more sinister.
    Fabius Maximus replies: Thanks for the greater context! You might be correct about the continued slow disassembly of the Constitution.

    But the growing role of “rotten boroughs” creates a different problem for our Consititutional regime, and one both more difficult to fix and visible to all Americans. How we deal with this might be the supreme test of the Republic, for it can be done within the Constitutional framework (with the consent of each and every affected State) — but not easily!

  8. Secret order allows U.S. raids abroad,” The New York Times, 10 November 2008.

    I have seen much speculation about possible war crimes, and also about pardons that might be issued by President Bush. Do you think that, during his last days, we might see a sort of American glasnost?
    Fabius Maximus replies: No, but it is interesting speculation!

  9. Again no mention of the most likely drive FOR a constitional assembly (up until Sep. 2008) — abortion. The pro-life folks would like a pro-life ammendment, but don’t have the votes. The equal rights for women folk … don’t have the votes. The balanced budget folk … don’t have the votes, and this is a bad time to cut gov’t spending (tho reducing waste isn’t so bad.)

    The Roe v Wade ‘amendment’ is how the Constitution will be changed — by US SC fiat ‘discovering’ new rights (i.e. health care?) and powers (for gov’t economic control? speech control? gun control?).

    Obama will appoint judges who find out that gays have a right to be married. And that gov’t has the rightful power to take property (like the Kelso decision, already done; now it’s just expanding that power).
    Fabius Maximus replies: No mention of social issues because they were irrelevant to the subject under discussion. And has anyone of serious note proposed a constitional convention to discuss abortion, equal rights for women, or a balanced budget? Not really (although I am sure some fringe folks have).

    “The Roe v Wade ‘amendment’ is how the Constitution will be changed”

    Yes, that is one perspective. Or one can say that is how the Constitution is being destroyed.

  10. Back in the 60’s, Illinois revised its constitution. One of the provisions was for home rule. A community of a certain size can issue hundreds of millions of dollars in bond issues without voter approval. Needless to say, many of us are not pleased as the pols can finance their pet projects with no fear of them getting shot down. Mark III could end up with the pols making it easier to line their pockets at out expense

    Also disturbing to me is the trend toward an authoritarianism in the last 2 decades. I am disturbed by:
    Attacks on habeus corpus
    Nullification of posse comitatus
    Domestic spying of all sorts
    Disappearing and torturing people.
    With the kind of people we now have in DC, I can see this kind of stuff getting enshrined in Mark III. It is like federal gov’t uber alles.

    P.S. Last week,voters were asked in Illinois to approve a convention to rewrite the constitution. It went down in flames.
    Fabius Maximus replies: The Constitution does not protect our freedom; it is just paper. We protect our freedoms. If don’t, they disappear. Such is life.

  11. Well, I’m no lawyer, but I think chucking the Constitution is a sick idea. The Constitution has proven remarkably resilient and adaptable to the growth of the nation. Compared to other possibilities, the balance of its arrangements is ingenious — inspired — and I am thankful to live under its aegis, however imperfect the times. The advantages of a bicameral legislature were always balanced by the disadvantages. Checks and balances were the plan; fairness leaves factions disappointed in equal measure.

    To whom would you entrust a re-crafting of our national constitution? No living legislator comes to mind, though perhaps I could have agreed with including Wayne Morse, Everitt Dirkson, or Patrick Moynihan on the committee. The Founding Fathers are not so easily replaced.

    I’d say reports of the Constitution’s death are highly exaggerated.

    BTW: To compare us to the Weimar Republic, as above in #6, doesn’t make sense to me. The Germans simply had no tradition in self-government to refer to. If you want to get a picture of this, read up on the political arrangements that Claus von Stauffenberg and his conspiracy envisioned for the aftermath of Hitler’s assassination; their plan amounted to a sort of Knights of the Round Table! Our pragmatic traditions have better roots.

    On the other hand, if you are saying that bailing out companies mismanaged by overpaid executives is going to sap the morale of this country like nobody’s business, that I will agree with you.
    Fabius Maximus replies: This post does not advocate or even discuss “chucking the Constitution.” Rather it is like your grandmother dying. We love her, but all things die — despite our wishes.

    (2) “To whom would you entrust a re-crafting of our national constitution?”

    As my sentence “Perhaps worst nightmare would be an new Convention” suggests, the answer that none of our elites can be trusted with such a thing.

    “I’d say reports of the Constitution’s death are highly exaggerated.”

    Perhaps you could give a more specific rebuttal at “Forecast: Death of the American Constitution“, where this is discussed in more detail.

    (3) ” bailing out companies mismanaged by overpaid executives is going to sap the morale”

    Trivia. In a few years this will be forgotten under the weight of far more serious problems.

  12. The original framers of the US constitution placed great emphasis on limited government. To that end they designed a system with very limited power for the executive, where in theory is was junior to the legislative branches. This is

    As the size of the United States has grown and just as importantly, as technology has allowed very large organisations to actually operate effectively and moved the world away from the concept of many small independent economic and social entities towards very large ones the original intention of a small executive branch has become untenable.

    Again and again, and importantly, with increasing frequency the United States has run into problems or opportunites that could not be solved or acheived within the minimalist executive model.

    World War I. The Great Depression. World War II. Landing a man on the moon. None of these problems or opportunities could be handled by the kind of government envisioned by the original founders. To get around this problem, executive branches, with the strong support of the people, have increasingly bypassed the constitution. The many acheivements of the executive branch and the ability of mass media to give the president a better hearing than a local congressman or senator have had the effect of increasing the legitimacy of the executive branch to the point where the legislative branch carries more weight with voters than a voter’s actual representatives.

    The US constitution is based on the assumption that the house and senate have more electoral legitimacy than the president and that there is no real reason that is in the people’s interest to have a powerful executive. Modern technology has rendered both assumptions incorrect. This has resulted in a Congress with too little political power to uphold its role of defender of the constitution (ie it has consented to give up power to the executive branch because it lacks the legitimacy to be always fighting the president and for many real world problems it has no choice but to hand the problem over to the executive anyway.)

  13. John Robb has just posted the following:

    The Reverse Inkblot. John Sullivan of the LA Police’s anti-terrorist group, makes a great observation. The effect that occurs when many small groups create temporary autonomous zones within a country looks like a reverse inkblot/oilspot (inkblot/oilspot is the name for a strategy of creating zones of local order via counter-insurgency that can be stitched together to heal the whole) — albeit one without central direction. Personally, given the opening a silly/archaic name like inkblot gives me, I would like to point out that the world will soon be made of cheese, swiss cheese!

    Robb does not state – and I think it is unclear – whether these reverse inkblots will be centers of disorder or whether they will be countercultural centers of alternative order.

    I would suggest that, in addition to geographic reverse inkblots, there will be reverse inkblots in the ideosphere – as new ways of looking at things assert themselves in the interstices of current categories.

    Any future Constitution, whether formally amened as you suggest or de facto amended as, say, it was in 1936, would be molded by these reverse inkblots.
    Fabius Maximus replies: This is a gross over-simplification on several levels. The US — and all large nations — were inkblots throughout history. Their current homgeneity and high degree of central control resulted from the mass mobilizations of WWI and WWII, plus improvements in communication and transportation since 1800. On a larger scale, central control waxes and wanes in large nations (e.g., China).

  14. As the activist Wavy Gravy once said, “It’s all done with people.” Our next President has taught law students about the Constitution, and it seems as if he will have a great deal of influence on the course of things for the next few years. It’s an evolving situation, and as the Cheney Administration has shown, it doesn’t really matter what it says in the laws or the Constitution – “it’s just a piece of paper”. The quaint idea that Congress declares war, for example, is a historical curiosity.

    What matters is what is actually done, and I hope that the Obama regime will be more humane, if not any more punctilious about the “privacy” (another historical curiosity)of citizens, or restrictive of the established right of the American President to give orders to kill civilians by bombing, whenever and wherever he deems it desirable.
    Fabius Maximus replies: The Founders drew the exact opposite lesson from history, that relying on individual leaders to preserve our freedom does not work. A people loving freedom, dedicated to a clear expression of that love (the Constitution), was the best guarantee.

  15. With regard to the “reverse inkblot” concept cited above – this is not so different from the way things always are. At one point I lived in a county in the US where the Sherriff’s department was in charge of the marijuana supply. I suppose (although I don’t know from personal experience) that there are quite a few places here, there, and everywhere where one cannot, in practice, operate a particular kind of business without paying tribute to the people “in charge” – not legally in charge, but able to enforce their demands nevertheless.

  16. One wonders what our Founders, or people like them, would do if they had an opportunity today to write a Constitution. Certainly our form of government represents many compromises, one of which is that the best form of government, benevolent despotism, had the tragic flaw that the benevolence could not be guaranteed, and it contained no reliable mechanism for succession. So perhaps we need to reconceptualize around that idea… that indeed, it is best to have a benevolent despot, but there need to be answers to the questions of maintaining benevolence and ensuring an orderly succession (other than heredity, for example, which has often led to very bad rulers).

    Indeed, we may already be on our way to this. In that we do have a mechanism for succession which works fairly well (some might consider that it failed in 1877 and 2000 to our great detriment, but that’s not a bad average). The roles of the other two branches could be reconfigured to be more assertive about ensuring the benevolent part… to my mind, failed impeachment against Clinton and no effort against Bush on that front were weaknesses of the legislative and judicial branch, in that too much politics led to attempting to remove an adequate leader who was benevolent enough (albeit flawed in ways irrelevant, for the most part, to governance, and that certainly were not high crimes or misdemeanors), whereas it is arguable that Bush should have been removed due to the entrance to the Iraq war and torture.

    The point being that what might make the most sense now is for the judiciary branch to focus on keeping a benevolent despot from trampling unnecessarily on individual and collective rights, and for the legislative branch to focus more on oversight than policymaking. We could allow Presidents to serve more than two terms if the people so desired, but in cases of high crimes and misdemeanors, have a more ready mechanism to make a change, perhaps even by calling a special election. Good oversight and a strong judiciary would mean that when things like torture did happen, they would be revealed and dealt with (by policy change or impeachment) as quickly and apolitically as possible.

    It may also be, and this is a much bigger question, that the relative sophistication of society and culture means that our two core adversarial systems, divergent and oppositional, both legally and politically, are obsolete, too inefficient for the modern world. We may need more convergent models. In terms of politics, that is what the Founders envisioned in the first place.
    Fabius Maximus replies: Very creative thinking! Not to my taste in such things, but this kind of out-of-the-box thinking is what we need more of, IMO.

  17. Personally, I don’t think a new constitution would be an enormous help at this point. The phrase I think of the most often is “otherwise intelligent”. We are a nation of magical thinkers who are otherwise intelligent. I don’t think a rewrite will change this.

    In the example of Roe VS Wade, obviously if someone is against abortion, they should be pro-birth control. Even if one doesn’t like birth control, certainly they would prefer it to what they consider murder? But no, the people who are the most offended by abortion are invariably anti-birth control. They take more comfort in their imaginary solution (suddenly, because of policy people stop having irresponsible sex) than in a real, pragmatic solution (availability of preventive birth control).

    Are they stupid? Of course not. They’re some very brilliant people on both sides of the debate. Brilliant people completely blind to reasonable compromise because adherence to dogma has made them “otherwise intelligent”.

    Reality is often complicated. When the average American has a hard time finding Afghanistan on a map, but little problem electing people to send their children to bear arms there, what chance is there for truly brilliant but complicated ideas like Schulze method voting?

    Let’s fix education first, then in another 30 years we will have a populace with the critical thinking to undertake the rest of the reforms.
    Fabius Maximus replies: I suspect truthwalker is not clear on the fact-value distinction.

    “obviously if someone is against abortion, they should be pro-birth control.”

    Why is that necessarily so? Roman Catholics doctrine oppose both. Since I doubt you will cite divine revelation, logic from first principles is the only alternative. Since there are no first principles, I doubt you can prove this in any meaningful sense.

  18. What comes after the constitution? Barbarism.

    Police in America are have now become muggers with badges, different from the BTK killer only insofar as they are above the law. Police in America now behave exactly like the KGB, brutalizing children and tasering elementary school kids and breaking down the doors of “suspected protestors” using no-knock warrrants in Minneapolis prior to the Republican National Convention. There is now no difference between the treatment of protestors in China by Chinese secret police, and treatment of protestors in America by U.S. police.

    The Bill of Rights has disappeared, police can now murder and taser and publicly torture anyone anywhere for no reason with no legal repercussions, and the rule of law now no longer applies in America. If you are a law abiding citizen who has never committed a crime and you are stopped by a police officer, you must now seriously consider using a concealed weapon to kill the police officer pre-emptively in order to avoid being tasered and beaten to death by yet another out-of-control thug cop who will never even be reprimanded for murdering you without any justification.

    What comes after the constitution?

    Torture, murder and widespread brutality by muggers with badges. The end of the rule of law and a state of Hobbesian nature in which the police are far more dangerous to the average citizen than rapists or serial killers.

    Barbarism. That’s what comes after the constitution. This has been another edition of Simple Answers To Complex Questions.
    Fabius Maximus replies: I suggest some travel in Mexico or Asia to put our Police behavior in perspective. As an experiment, viciously insult ten American cops on the street in Boston, then report the results to us. Do the same in Turkey and, if you can, report the results to us.

    Also, read some American history. I doubt our current Police behave worse than in the past. Just to cite a few of many examples, note their 19th century role as strike-breakers, or forcing sheep-herders and small farmers/ranchers off their land (or turning a blind eye while hired gunmen did so).

    As for considering what we have — or are likely to have — as barbarism, I suggest some travel thru south of the Sahara Africa. You might appreciate America a bit more, for all its faults.

  19. Why does this conflict with my singularity analogy?

    Because you propose the singularity as a single, unknown point in time. You then proceed to use it as an excuse to ignore the long-term impact of decisions. A better analogy would be a car driving at night. It’s always possible that danger is lurking ahead on the right side of the road, but that doesn’t mean it’s a good idea to drive on the left side of the road.

    Do you think people are stupid? Hyperinflation is a default on the government’s promises, and everybody will know that.

    The numerous bailouts of the past year and half are blatant transfers of wealth from responsible people to irresponsible people. Those bailouts were embraced by a supermajority of legislators who were reelected at a rate of over 95%. Wars are unmitigated wastes of productivity, yet it’s rare when we’re not in one.

    All you have to do is use the world’s largest microphone to scream “It’s our only choice!” for a few weeks. I’ve learned not to underestimate the government’s ability to sell unpopular policies. I think a review of history will show that most hyper-inflationary periods don’t lead to drastic changes in governance.
    Fabius Maximus replies: By the numbers.

    (1) “You then proceed to use it as an excuse to ignore the long-term impact of decisions.”

    Quite a bizarre mis-interpretation of what I said: We cannot see beyond it, because we do not see or understand the choices that will determine our fate – let alone how we will choose. It also resembles a singularity in that what lies on the other side is unimportant until one survives the passage through it. (i.e., if you die during the passage, you do not care).

    (2) “The numerous bailouts of the past year and half are blatant transfers of wealth from responsible people to irresponsible people.”

    It takes a rather spectacular ignorance of history to compare current events with hyperinflation — like Revolutionary France, Weimer Germany, or Zimbabwe today.

    (3) “I think a review of history will show that most hyper-inflationary periods don’t lead to drastic changes in governance.”

    Examples, please. The first two listed above led to Napoleon and Hitler.

  20. FM, I’m surprised you find the moral hazard inherent in today’s public policy “trivial.” I see it as a fulcrum with which the Constitution could well be overturned. When you say,”…this will be forgotten…” who will be doing this forgetting?

    I don’t find the death analogy between Granny and the Constitution logical; two different orders of being. In the long run, we’ll all be dead. But I see the Constitution as being vigorous and alive today. The existence of your site is one proof. Try doing this in PRC. My father was exiled to the Soviet gulag for ten years, and my mother grew up in Nazi Germany, so perhaps I appreciate the liberties promised by our Constitution over much.

    Will America cease to be world hegemon soon? Probably. Will the dollar cease being the reserve currency? I suppose so. Does this guarantee the demise of the Constitution? Not necessarily. Is the Constitution under threat or pressure? Constantly, by injustice, by abuse of power, etc. In all events, I declare that I choose to uphold and defend our Constitution. A government of laws, not men.

    Jefferson famously suggested that America might outgrow its laws and need to renew its revolution . Maybe so. The emperor T’ang, virtuous founder of the Shang dynasty (1766 BC), had these characters inscribed on his bathtub: “If, sun, new, sun, sun, new, further, sun, new.” This can be translated as “As the sun is new each day, make it new everyday, yet again make it new!”

    BTW, The idea of the temporary autonomous zone (TAZ), mentioned in passing in comment #13 above, was developed at length during the 1980s in a disquisition on pirate utopias by anarchist author Peter Lamborn Wilson (writing under the pseudnym “Hakim Bey“.
    Fabius Maximus replies: By the nunbers.

    (1) “bailing out companies mismanaged by overpaid executives is going to sap the morale”

    Please give the full quote: “Trivia. In a few years this will be forgotten under the weight of far more serious problems.” That’s my opinion; only time will tell who is correct.

    (2) “I don’t find the death analogy between Granny and the Constitution logical; two different orders of being. In the long run, we’ll all be dead.”

    You believe the Constitution will last forever? How odd.

    (3) “But I see the Constitution as being vigorous and alive today. The existence of your site is one proof.”

    That’s a bizarre characterization of my posts about the Consitution, a “straw man” logical fallacy. I said it was dying, fading. And gave evidence, none of which I see mentioned here amidst your glittering generalities.

    (4) “In all events, I declare that I choose to uphold and defend our Constitution. A government of laws, not men.”

    Irrelevant to what I said, but a nice example of a glittering generality.

    (5) “As the sun is new each day, make it new everyday, yet again make it new!”

    That is an excellent summary of my conclusion, as expressed in the first post of the series “Forecast: Death of the American Constitution“.

  21. We cannot see beyond it, because we do not see or understand the choices that will determine our fate – let alone how we will choose.

    Yes, we can see beyond it. It’s possible that human nature and/or the gravitational constant might change, but there’s no reason to assume such things will happen. Many of the rules will remain in place. We need to be prepared to improvise, but it would be irresponsible to forego all predictive efforts.

    It also resembles a singularity in that what lies on the other side is unimportant until one survives the passage through it. (i.e., if you die during the passage, you do not care).

    That’s not true either. I care about my family. I care about humanity in general. If I happen to die because we make rational long-term decisions, so be it.

    Examples, please. The first two listed above led to Napoleon and Hitler.

    Take your pick. There are two likely post-hyperinflation scenarios: the ascendency of a strongman or superficial changes. A successful worker revolt is rare.
    Fabius Maximus replies: This is mostly quibbling.

    (1) You must be kidding about the hyperinflation. Most of those listed either followed or preceded regime changes. Some regimes survive hyperinflation, usally small nations receiving massive external aid.

    (2) “possible that human nature and/or the gravitational constant might change”

    Brutally irrelevant to anything I said. Nice example of the strawman logical fallacy.

    (3) “Yes, we can see beyond it.”

    That is an astonishing statement given that the poor record of forecasting social evolution over even short periods — by everyone, expert and layman alike.

  22. Most of those listed either followed or preceded regime changes.

    Meet the new boss, same as the old boss.

    Brutally irrelevant to anything I said.

    Your predictive models aren’t based on human nature and physical constraints?

    astonishing given that the record of forecasting over even short periods is so poor

    You’re smarter than this. You have to be. Forecasting broad trends is ridiculously easy. I no clue what policies will be implemented in the next ten years, but I’ll readily bet most of my money that they’ll be progressively more interventionist.

    I prefer carnations.

  23. My point was that otherwise intelligent people get caught up in dogma and are totally unable to make the sort of compromise needed to hammer out a document that applies to everybody.
    Fabius Maximus replies: True. Sadly very true.

  24. Well, I suppose the interesting question is : “You believe the Constitution will last forever?”

    The Constitution is a historical document, but it also enshrines ideas, ideas about the rights of man, and the dignity of man. It’s taken us quite a bit of time to get here; we have seen other lawgivers, Hammurabi, Moses, etc. Are these truths eternal? Well, how could I know? But the “Enlightenment Ideals” enshrined in the Constitution are pretty good. So I am loathe just to say, “Oh, what the heck, they’re toast.” (I’m an artist, so I’m no expert; just going by my gut here.)

    The dignity of man. Is man dignified when he gases Jews? Is man dignified when he bombs weddings? These events try our faith, no doubt.

    You say the Constitution is dying, fading. You cite the Louisiana Purchase, Marbury v. Madison, Play-Doh, presidential war powers, demographic shifts to the coast, etc. as evidence. I say, I need to take a stand. Life is short, I have to stand for something.

    This, you say, is “glittering generalities.” Fair enough. But this takes me back to the question of whether certain ideals aren’t eternal. Plato would have said these were the only truths. I do not know. Some people say that in 200 years the combination of genetic engineering and computer science will enable the creation of a “new type”, exceedingly superior to man in cognition, farsightedness, and longevity. I do not doubt it. But we are here today. And today I say the Constitution is vigorous. A thousand law cases in court today are my evidence. A thousand teachers and students in law school. The freedom to post your site and the self-same freedom of thousands of sites in America are evidence of a right to expression and thought quite rare in the panoply of history. These, and ten thousand more things, are my evidence.

    I don’t think we really disagree on the challenges of our times. I don’t think we disagree about the aptness of T’ang’s bathtub inscription. But I am wary of portentous prophecy. Even a broken clock is right twice a day. They say, the pessimist is an optimist with additional information. I laugh, but believe it must be so. But what of the cynic? Could the cynic be a pessimist with foreboding of unknowable singularity?

    Confucius said: “Scholarship is an excuse for sloth.” By which he meant that you can think about things and study things all you want, but at some point you are going to need to take action.
    Fabius Maximus replies: Most of this is beside the point, brutally off-topic. I am refering to our current political regime, which is based on the Constitution. What happens to the physical document is not relevant to this series of posts. What happens to the ideas you attribute to it is also irrelevant to this series.

  25. Fabius Maximus: “The nature of a representative democracy – the degree and manner in which elected officials represent citizens, depends to a large extent on the number of people voting per official

    I think the only solution for that is a chain of representation (like the military chain of command): Each hundred would choose a representative (R1), every hundred R1 would in turn choose a representative (R2), all the way up to the national level. A similar system was used in the 1918 soviet constitution.
    The needed big change, in my opinion, is not in the constitution but in the republic; the idea of a ‘state’ has long outlived its usefulness. The republic should be divided into sub-zones in a completely new manner, like they did in the Roman Empire circa 300 AD.

    Fabius Maximus replies: Do you think people are stupid? Hyperinflation is a default on the government’s promises, and everybody will know that.

    In the 70’s the government defaulted on its gold obligations and OPEC was blamed for the inflation. In 1922 the German government confiscated the nations’ savings and the Jews were blamed. Just six months ago Iran was getting blamed for the high oil price.

    (Apologies for any oversimplification and/or generalisation)

  26. If we need to replace the “Big Three” auto exec’s for mismanagement, Washington’s politicians should be right on their heels. The disaster that has befallen the American people has many culprits but none more culpable than our very secure “leadership”.

  27. I totally see a problem with the representation. There should be more representatives. More involvment would follow on peoples’ part. And the technicalities of making it happen should not really exist considering it does happen to be the 21st century.

  28. Janmes Fallows: The Rotten Boroughs in the Senate

    ‘What Are Those Traditions? Rum, Sodomy, and the Lash’“, James Fallows, The Atlantic, 12 December 2011– Excerpt:

    Mike Lofgren, who recently retired from a career as a Republican staffer in the Senate, and whom I have quoted before, by coincidence makes a directly parallel point about the origins of the filibuster and the recent return of “nullification” thinking by Republican members of the Senate.

    I’m not surprised Lindsey Graham thinks he’s rediscovered another tradition of the World’s Greatest Deliberative Body. After having worked there, my reaction to the Senate’s hallowed traditions would be along the lines of Churchill’s response to an admonition that he was tampering with the traditions of the Royal Navy: “And what are those traditions? – rum, sodomy, and the lash!”

    In the Senate’s case, it would definitely be the lash of chattel slavery. The restrictive, minoritarian makeup and procedures of the Senate (at least those enumerated in the Constitution – most of them were established piecemeal by the Senate’s membership at later times) did not arise solely from a disinterested desire to create a bulwark against a hypothetical future tyranny. They came into being in the first place partly as a compromise to protect slaveholding interests in the less populous Southern states. And the history of the Senate for the next seven decades after the founding was closely bound up with the antebellum South’s defense of slavery. After the Civil War, and for the next hundred years, the Senate was often the last ditch of defense of the Jim Crow system. The current 60-vote threshold is actually a reduction from the previous 67-vote threshold, and was to some extent a reaction to the bitter fights Strom Thurmond and his segregationist colleagues waged through the mid-1960s against civil rights legislation.

    Talk about your rotten boroughs – the institutional compromise with slaveholders means we are stuck with a Senate where the voter in the smallest state gets more than 50 times the representation of a voter in the largest state. [JF note: actually, about 66 times, Wyoming vs California.] This accounts for some of the crazy legislation we are saddled with, from the various farm bills to the 1872 mining law. It also makes the State Department’s bellyaching about undemocratic procedures in other countries seem hypocritical.

    And as for the old-world gentility – has the Senate unfailingly been the arena of Cato and Cicero, or people of a less exalted demeanor? For every La Follette or Fulbright, there have probably been at least three John Calhouns, Bully Brookses, Jeff Davises, Joe MacCarthys Theodore Bilbos, or Strom Thurmonds.

    Trying to govern a complex society of 310 million people via a museum piece like the Senate is like trying to operate an airline whose fleet consists of Wright Flyers. The liberum veto system in 18th century Poland (whereby one delegate to the Polish diet could prevent its functioning)led inexorably to legislative dysfunction and at least partially to Poland’s inability to defend its own national existence. The S & P credit raters were not wrong when they attributed the reason for their downgrading the U.S. credit rating in August less to economic fundamentals than to political dysfunction.

  29. Pingback: After Independence Day, look to America after the Republic - Fabius Maximus website

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