The Constitution | New NY 23rd

 In a deeply uncertain, shifting, unequal and violent world,” imperfect constitutions “may be the best that we can hope for.” — Linda Colley, quoted by Jill Lepore

Jill Lepore, in a March 29th article in The New Yorker, “When Constitutions took over the World,” suggests The Constitution may be too hard to amend. The Constitution has been amended less frequently than constitutions of other countries and much less frequently than state constitutions. The Constitution may well be hard to amend, but there are more pressing problems:

  • The Constitution is silent or vague on important matters.
  • The Constitution can be ignored with no consequence other than possible impeachment.

Lepore writes that the first ten Federalist Papers concerned the danger of war. The authors of The Constitution addressed this by giving the war making power exclusively to the legislature. Experience shows that this didn’t work. President Wilson ran an antiwar campaign, yet when he asked, Congress overwhelmingly approved war. After that, Congress was even more careless with its responsibilities.

Can a President pardon himself? Can a President sell pardons or offer them in advance of a crime? We might better settle these questions before they arise again.

Is “The Emoluments Clause” enforceable? Apparently not. Can a president refuse to accept the results of an election? Apparently so. Can a president barter with a foreign leader over interference in an election? It has been done.

Should there be an upper limit on the age of presidential and legislative candidates?

Impeachment is in theory the answer to Presidential misbehavior, but it has never been used successfully, except arguably in causing President Nixon to resign.

The Vice President, nominated by the successful presidential candidate, is chosen undemocratically. As a result, Spiro Agnew, one step away from becoming President, needed to be squeezed out in a plea deal.

Lepore writes: The problem, in the United States, is that it is extremely difficult to amend the Constitution. It’s often thought to be structurally impossible these days, but much scholarship suggests that it is, instead, merely culturally impossible, because of the very reflexes of veneration of the Constitution that inspired Linda Colley to undertake the project that became “The Gun, the Ship, and the Pen.” The system of government put in place by the Constitution is broken in all sorts of ways, subject to forms of corruption, political decay, and anti-democracy measures that include gerrymandering, the filibuster, campaign spending, and the cap on the size of the House of Representatives. 

One problem with The Constitution is the undemocratic Senate. I don’t foresee a supermajority of States amending that. It would take a two-step process–first amend Article V to allow changes to the Senate (the Gödel loophole); then a second amendment for a democratic Senate.

I am puzzled by Lepore’s remark on the size of the House. Would a larger House be better? That seems unlikely especially with the present ultra-partisanship.

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