Isn't it time to consider writing a new Constitution then?
Most countries have had "a few" (2, 3, 4...) since the inception of the formalized idea. We now know how to draft "good enough" Constitutions by common standards (relatively to history and other countries).
It's a famous US peculiarity in Constitutional Law studies: to have gone the amendment path for so long. To have been so resilient to epochs, to change, to greatness. And yet as of the 21st century, it shows elements of "unfairness" and approximation that seem hard to sustain further, to "sell" to the masses for much longer, or so it seems from a nerdy-law standpoint.
There's evident success but it may have been at the expense of a significant degree of actual democracy — as you suggest for the judiciary branch: this infringes on the legislative branch in this case, and outright fails the accountability check absolutely required from lawmakers. By comparison, judges are elected in the US system, which is accountability put in place to counter or mitigate their ability to make the law by way of setting precedents, giving citizens an indirect say in the matter.
I don't know. I've always pondered on this question. I observe tension rising in this direction over the last 20 years (since Bush Jr essentially). Maybe it's just my personal bias speaking — no wonder a programmer sees the law as inneficient code to be refactored asap! ;-)
We don't have a mechanism to replace the Constitution. Short of getting all 50 states to agree on it (good luck) it's never going to happen without a civil war.
You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.
When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want.
I do agree that it should be extremely difficult, and it obviously is.
Historically they've been pithy, but there's nothing stopping someone from proposing an Amendment that says "Article 1 of the Constitution is hereby replaced by.... Article 2 is hereby replaced by...."
probably not, depending on which side CA lands. the western US is probably actually pretty well equipped to stave off the east from invasion. there's, grossly oversimplifying, hella mountains (north) and hella desert (south). not only that, but california feeds a lot of the nation.
honestly, the 3 pacific coast states (CA/OR/WA) are probably pretty well equipped to secede and start their own country if they should see fit to do so. massive coastline, tons of food production, hugely powerful economy in cali.
It still depends on the military. CA is certainly an economic powerhouse, but if the bulk of the military doesn't side with CA, I doubt groups like the National Guard (assuming they don't also support the federal gov't) or private militias (which, let's face it, are children with toys compared to the US military) will be enough to repel the US military, mountains and deserts be damned.
On the contrary, Article V clearly states that it would require legislation on the part of two-thirds of the States, or passage by two-thirds of the House and Senate, and subsequent ratification by three-quarters of the state legislatures.
This would convene a Constitutional Convention, which in turn could rapidly pass an Amendment rendering the existing Constitution null and void upon ratification, after which they could turn their attention to creating and ratifying a new Constitution.
Not only would this be perfectly legal, I consider it an excellent idea.
The effect would be the same. We would end up with a country of, by, and for the red states, for better or worse.
It would be much better to focus on enforcing the existing Constitution, than to write a new one that would also end up being ignored when it proves the least bit inconvenient to the government. The world is full of "democratic" countries with lofty-sounding constitutions.
3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red.
In reality the country is divided enough that no wholesale rewriting of the constitution would ever be possible in the current political climate either way, using the amendment mechanism. Hence the importance of using the SCOTUS to reinterpret it one way or another instead...
3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red.
I strongly disagree with your definition of "red states," given the electoral-vote map from the last Presidential election.
In any case, my point is that rewriting the Constitution would have no beneficial effect anyway, because we'd just continue to ignore it.
Personally I am concerned that such a convention would lead to major changes (in the wrong direction) on individual rights and issues like privacy, censorship, and accountability for the powerful. On the other hand the original constitution is slowly becoming unworkable due to years of contradictory case law.
> Not only would this be perfectly legal, I consider it an excellent idea.
An excellent idea in the abstract sense of hey, that's a really clever way to update the constitution, or an excellent idea in the sense of the politicians operating in America today can be trusted to update the constitution properly so let's do that? Only one of those isn't totally crazy...
And not only the politicians, but every lobbyist and lawyer and judge in the land would want a crack at changing things to their vision of a better Constitution.
A Constitutional Convention is basically opening up one heck of a can of worms. Because remember, a Constitutional Convention gets full power to try and rewrite almost ANYTHING.
In neither sense, because a popular movement to replace the Constitution could only succeed by replacing the existing legislature with one which is amenable to such a course of action.
It's far-fetched, I readily concede that. But it has a lot to recommend it, the very act of proposing and bringing to reality a Constitutional Convention would be a powerful engine of change, with a better-than-even chance we'd end up with a better system than we have now.
This would actually not work exactly as stated, since there are several parts of the constitution that cannot be amended (every state being entitled to equal representation in the senate, for example). But most of those problems could be worked around
What makes you believe that this part of the constitution cannot be amended? Article V only says that it requires consent of the affected states - which would be all of them, so it's a high bar, but it's not outright prohibited.
That is a very interesting question. One could argue that the spirit of the clause necessarily implies that it cannot be amended itself without consent of all states.
Another possibility would be to nullify the powers of the Senate. So all states would still be entitled to an equal representation, but it's in a body that is purely decorative, so they're welcome to it. This is also arguably counter to the spirit of that clause - although that would be more difficult to argue, since the power of all states would be equally diminished...
But either were to actually happen, the question would rather be, to whom would you make that argument, and what power would they have to enforce such a decision anyway? I would dare say that if anybody got the supermajority necessary to amend anything, they could just roll with it and disregard any objections - just as they disregarded all those who considered the Constitution illegitimate, on the basis that its ratification didn't follow the requirements set by the Articles of Confederation.
If the amendment process is flexible enough to allow for throwing out the entire constitution and writing a new one, I feel like a more practical way to achieve drastic change would be to 1) write a new, idealized constitution, 2) diff it against the current one, 3) bucket the changes, 4) propose and ratify a series of amendments that gradually morph the constitution into what's desired.
Now, I don't expect that to happen either, but it seems more plausible. While it might be incredibly satisfying to throw everything out and start over, I'm not sure that's even wise, even ignoring the practical considerations.
Regardless, I think there's a lot of good in there that has held up really well over time, and we shouldn't be so quick to think we can do better. Some things have to go (like the overly-broad interstate commerce clause), and some things need to be added (like stronger rights to privacy), but I think we still have a solid base to work with.
Regardless^2, I don't even see the Equal Rights Amendment getting ratified (even ignoring its currently-expired state); anything larger seems too daunting. Our political client isn't amenable to any kind of constitutional amendments, and I expect that to be the case for many decades to come.
Regardless^3, the political machine seems to -- correctly -- believe that stacking the supreme court is the way to effect constitutional change nowadays, and they're unfortunately doing a good job of it so far.
The Constitution places no limit on the scope of amendments, so in theory Congress could pass an amendment that says "The text of the Constitution is replaced with _____."
Of course you can. “Shall not be infringed” would never be interpreted as overriding the explicit amendment procedure in Article V. Most countries have found easy solutions to the paradox of laws that attempt to restrict their own amendment: https://en.wikipedia.org/wiki/Entrenched_clause
There's one notable limit in that an amendment can't deprive a state of equal Senate representation:
>...provided that ...[restrictions on amendments before 1808]; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
> no wonder a programmer sees the law as inneficient code to be refactored asap! ;-)
Almost every time I hear programmers talk about the law arguing that it should be treated like software and be far more precise and absolute than it currently is I'm reminded of this comic: https://xkcd.com/1831/
There's good reason why most laws contain measured language such as the infamous "reasonable person." They are purposefully written to support changing interpretations as societies expectations of reasonableness and acceptableness change.
Many programming based approaches to the law treat it more like a codification of exactly how a person should behave in every situation, and precise penalties should they violate strict protocol.
It also reminds of the of Etherium DAO. How the mantra for Etherium was "the code _IS_ the contract" for so long, until it turned out the code had unintended behaviour and the so called "contract" was rolled back.
> Almost every time I hear programmers talk about the law arguing that it should be treated like software and be far more precise and absolute than it currently is I'm reminded of this comic
Yep, it's hard. However, there are two things going on. The first is that there are people who are highly motivated to reinterpret or misunderstand a law they don't like or think is wrong. Even when it's pretty damn clear.
The second thing is there are some passages in both the Bill of Rights and the law that aren't as clear as they could be (and not because they're intentionally written that way to provide latitude). I think these are "bugs" that could have been addressed with better drafting. I often ponder how one would re-write the constitution to be more clear, more effective and yet still resilient to change over centuries. It's a hard problem but I think there are certain meta concepts that could be applied that would be net improvements.
American law system does evolve itself through case law. Things which are not clearly defined in the original language are clarified and adjusted through cases. Does it always get everything correct? No. But it's one of the best systems you can get on this planet.
Love the idea of programmers writing the Constitution.
"It works for 95% of the cases, should be fine!"
"Just write up a first working version and we'll iterate from there!"
The writers of the Constitution were experts in history, philiosophy, religion, political theory, war, and even they hesitated and put multiple safeguards in case they got things wrong.
What a laugh that the average computer science grad (or worse, just brogrammer) could even understand the range of considerations to be encoded into a country's operating principles...
just as much a laugh to deify the original writers of the constitution. do you really think we havent learned anything since? and why are you talking about average programmers being involved in this hypothetical process?
i have no doubt we as a people could write a far improved constitution; the problem is that there is no suitable mechanism to get there, no way to avoid corruption
As someone who studied law, I agree with your general sentiment. I was not implying that programmers do that. ;-)
I would however temper your dismissal of "average grads": in lawmaking too, drafts may be written or refined by young people who need to learn! But not without ultimate supervision, of course. Just like young code monkeys are totally able to touch production code in some settings.
As for the deeper matter, "the range of considerations to be encoded into a country's operating principles..." — love the wording, btw.
There's a long way until we are anywhere near expressing the full range of human languages in 'machine compatible' code, programming languages. One could argue there's not even a point in that, since you essentially attain redundancy; and there are more promising ways like ML to tackle the linguistic problem. However it's not black-and-white, the entire sum of norms that apply to us is a crazy vast space, and one that all (individuals and companies) should "optimize" to their particular case. In this as in many things, computing tools can help — and we certainly don't replace surgeons, senators or judges, we should already be content to immensely enhance their capabilities through technology. IMHO.
"Refactoring" was my tongue-in-cheek way of saying that there's much to do in the way of organizing information in the legal space: datasets from which to base logic or standards upon are basically non-existent beyond non-computable literature (that could be modeled, we're talking structure of the law not content, hierarchy and structure of norms, not what citizens put into it). Morphing said structure to become mappable is nigh-impossible to do without concerted effort of most parties. I vetted first-hand some ideas with people working in the field, but the general obstacle is more economical, it's a business strategy/politics problem more than a technical one. I have no idea myself but I doubt this quadri-centennial culture is in any way, shape of form less entrenched at the highest public/federal/international levels.
As someone who took actual law courses, I can only share your sentiment. Briefly,
- that xkcd is (as usual) pretty spot-on
- the most ancient piece of "law" that we have is Hammurabi's (~3200 BC but don't quote me on that), and it's translated to "code". In a weird turn of linguistics, I guess modern incarnation of "code" as a concept (i.e. computer programs) is a very specific subset of "ordering reality", applying "norms", defining "systems". But we should not confuse the two, there's a reason we write law in human languages and code in computer languages and the two have proven quite unable / unsuited to reach the other's purpose.
- a very active domain of lawmaking activity is "harmonization" (as called in the EU), the idea of making different law systems interoperate better with others (e.g. between States within a federation, countries in a Union, internationally altogether). The benefits (in litigation, cost) are enormous, and it's a massive undertaking for that sector. This is the kind of domain optimization I'm thinking about, where computing as a means can help humans better perform the job by orders of magnitude. Think e.g. tackling complex comparative graphs, effect/impact, etc.
> Many programming based approaches to the law treat it more like a codification of exactly how a person should behave in every situation, and precise penalties should they violate strict protocol.
Indeed, a chilling hell that hopefully we'll never be foolish enough to implement. But you know, I know, that the mere existence of the concept means someone, somewhere, sometime will do it. Note also that, in a "positive" way — e.g. to define a meritocracy in a private environment like a company or club — it's been proven viable (the case of Dalio is probably the most famous, but you could argue most corporations are/become such programmatic systems).
- The whole notion of "blockchain as law", "code = contract" is, AFAIK (I read a lot about that in recent years), idealistic. Wishful thinking. It is no more no less "law" or "contract" than your run-of-the-mill compliance-motivated feature. It's born of the will to define a new space from scratch, to 'evade' current systems — physical and digital: banking, surveillance, etc. I don't wish to state about the intent, but the constitutional view is quite clear: such a departure from the accepted "norm" is secession or revolution, and the only way to change that is to become the norm and thus define itself as legal. It does not matter if it's a 1776 paper or a 2019 state of the art technology, the concept of legality remains. TL;DR: everything is/becomes illegal from the standpoint of preserving the existing regime / order / norms; in effect no new regime is ever "legal" under the ancient: you effectively revoke the old, then create a new one.
I'm not sure how versed in public/state legal matters and the history of these things most blockchain proponents are when they believe creating a new legal domain is in any way different or easier because you write it in Java instead of English.
The business angle is more legit, literally so when it conforms to "good practice" (regulations etc.); however self-defeating it might seem to the idealistic "new law / regime" proponents.
Short story, all the talk about evolving law with/using blockchain technology is fluff. It's like saying "internet" or "social networks" will solve "social" altogether. Confusing pipes for content.
Isn't it time to consider writing a new Constitution then?
Maybe, but it’s not going to happen. Once the politicians understood that all they need is to put enough of their guys on the Supreme Court, any incentive to change how the country works through changes in constitution is gone: why would you go through all that hassle, if all you need to do is invoke the magical spells of General Welfare and Interstate Commerce, and it all through federal law?
"Isn't it time to consider writing a new Constitution then?"
The Bill of Rights would never pass today. It's too radical.
So, no thanks. I'll keep the scraps of the Constitution that I can hang onto rather than subjecting it to whatever our modern political system comes up with.
The Constitution was built on solid philosophical ground, truly advancing the state of the art for governments and freedom. It was written and ratified by people who risked everything for what they believed, and they had the humility and restraint to do a good job. And they actually relinquished their own power for the greater good.
Most countries have had "a few" (2, 3, 4...) since the inception of the formalized idea. We now know how to draft "good enough" Constitutions by common standards (relatively to history and other countries).
It's a famous US peculiarity in Constitutional Law studies: to have gone the amendment path for so long. To have been so resilient to epochs, to change, to greatness. And yet as of the 21st century, it shows elements of "unfairness" and approximation that seem hard to sustain further, to "sell" to the masses for much longer, or so it seems from a nerdy-law standpoint.
There's evident success but it may have been at the expense of a significant degree of actual democracy — as you suggest for the judiciary branch: this infringes on the legislative branch in this case, and outright fails the accountability check absolutely required from lawmakers. By comparison, judges are elected in the US system, which is accountability put in place to counter or mitigate their ability to make the law by way of setting precedents, giving citizens an indirect say in the matter.
I don't know. I've always pondered on this question. I observe tension rising in this direction over the last 20 years (since Bush Jr essentially). Maybe it's just my personal bias speaking — no wonder a programmer sees the law as inneficient code to be refactored asap! ;-)
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