In America’s civil religion, the constitution is the sacred text and the Founding Father’s are the prophets. They even have temples like Independence Hall in Philadelphia. Both the document and its authors are held up as paragons and models with huge rhetorical power.
Yet when a nation’s constitution prevents the rubbish in its capital city being collected, that constitution is clearly broken. The sheer absurdity of what is happening in America at the moment is staggering: the government of the most powerful nation on earth has voted to spend more than it raises in taxes and now has to (but can’t) separately vote to borrow the money to plug the gap. This Washington Post article observes “countries like Pakistan and Colombia have had civil wars, coups, financial crises, even defaults but never a government shutdown.” In fact a Commonwealth guidance note on debt management for its developing members warns them that legislative involvement in specific lending decisions “adds a potentially cumbersome, time-consuming and overpoliticised step in the decision-making process when time is often of the essence for market borrowing” and that ideally “an annual borrowing limit is set consistently with the financing requirement implied by the annual budget.” The way the US handles its debt thus falls far short of what would be expected of any nation let alone a superpower.
The reality is that debt management is far from being the only area where the US constitution is antiquated. What makes the US constitution so remarkable is that is that it is the first example of creating a supreme law for a democratic nation. However, this is the source of its weakness in the present day. You are not getting to get things right on a first attempt and since the constitution was written in 1787, we have learnt a lot more about how to govern a country.
While prototypes in other fields are likely to be replaced or substantially improved, the constitution is entrenched and extraordinary hurdles must be cleared before it can be amended. So it remains riddled with problems that later constitutions have at least to certain extent solved such as:
- It protects the wrong rights. The hallowed Bill of Rights is a strange document to 21st century eyes and not just because of the right to bear arms. It includes a right not to have soldiers garrisoned in your house but – unlike the ECHR – no protections for the right to marry, to receive an education or live free from discrimination. Many individual decisions are also dodgy, for example, the Citizens United decision that concluded that preventing unlimited corporate spending on advertising during elections was a breach of freedom of speech!
- A lack of legislative accountability. It is often unclear to voters what branch of government is responsible for what outcome. So for example, the Democrats were punished in the 2010 mid-terms for Barack Obama’s percieved failure to get the economy moving even though it was Republicans in congress who shrunk his stimulus bill.
- It politicises the judiciary by the combining an expansive role of the Supreme Court with requiring congressional approval for judicial appointments.
- It’s undemocratic. Wyoming (population: 500,000) and California (population: 38,000,000) have the same representation in the US Senate.
- It’s a vested interests dream. You get loads of opportunities to block measures you don’t like. Take the healthcare industries effort to block Obamacare: it had to be voted through by the house, get a supermajority in the Senate, not be vetoed by the president, survive a challenge at the Supreme Court and Republican controlled states have dragged their feet on implementing it.
- It makes solving social problems harder to solve. This is related to the point above. Because there are so many ‘veto points’ in the American political system that means it is hard to assemble a political coalition behind policies that might solve problems: universal healthcare is the obvious answer. In fact, much social science research has suggested that the more veto points in a nation’s constitution, the higher its poverty rate will be.
- Inability to resolve impasses democratically. A constitution heavy in veto points assumes that it is possible to default back to the status quo. This isn’t always possible and then a dangerous impasse can result. The most tragic example in US history is the Civil War: slavery had to be either permitted or not in states acceding to the union, there was no status quo to default back to. The Northern dominated House and Southern dominated Senate couldn’t agree on this matter, and so the two sides resolved the matter on the battle field. In general, it seems that democracy fairs better in parliamentary systems because they avoid this kind of impasse.
To move on from this Model-T constitution, the constitution should be made easier to change, so that it can evolve. Furthermore, the constitution should stop being used as a normative standard: the fact its in the constitution doesn’t stop the right to bear arms being a stupid idea.