Consequences of the Structure of the American Constitution

The writing of the U.S. Constitution, with its ten amendments listing the Bill of Rights, was finished on September 17, 1787.  It was presented on September 28, 1787, was ratified on June 21, 1788, and took effect on March 4, 1789.  It is the oldest written national Constitution that remains in force.

In many ways the Constitution is a brilliant document.  It is innovative in many aspects in its vision for a national government that separates and balances government powers so as to avoid many possible pitfalls foreseen by the framers.  It takes care to balance the interests of majority rule and minority rights and of liberty and equality.  It also makes provisions to balance the interests of the federal and the state governments.

The Constitution is interpreted, supplemented, and implemented by a large body of constitutional law.  It incorporates mechanisms for periodic amendment to bring it up to date as conditions change.  However, these mechanisms are cumbersome in the extreme and accepted amendments have been very infrequent.

A major current challenge is that the United States has changed in drastic ways from the nation that originally developed the Constitution.  It is hard to imagine how the framers of the Constitution could have anticipated the kinds and scope of these changes:

• Dramatic physical expansion of the United States (e.g., the Louisiana Purchase, Spanish Cessions, Mexican Cession, the annexation of Texas, acquisition of the Oregon Territory, purchase of Alaska, the annexation of Hawai’i, acquisition of Puerto Rico, etc.).
• Increase in the number of U.S. states from 13 to 50, along with a number of protectorates.
• Growth in the U.S. citizen population from under 4 million in 1789 to roughly 330 million today (a factor of increase of over 80).
• The shift from a predominantly rural population to one that is increasingly urbanized.
• A significantly changed demographic profile, with the white European population of the U.S. having an ever-smaller majority.
• Huge increase in the size of the federal Executive Branch bureaucracy, from a few hundred employees in three departments (State, Treasury, and War) in 1790 to almost three million employees today, with a vast increase in the number and scope of functions performed by the federal government.
• The development of an enormous standing military, accompanied by large intelligence services and Homeland Security organizations. The U.S. Military and intelligence services are deployed around the world, with roughly 800 bases.
• The involvement of the United States in the affairs of virtually every other nation on Earth.
• The development of powerful supranational institutions such as the United Nations, the World Bank, the International Monetary Fund, the World Court, and many others.
• The emergence of a vast array of nongovernmental organizations pursuing various interests.
• The institution of a federal income tax, providing dramatically increased revenue for the federal government with a corresponding increase in the size of the federal budget. Government revenue is now obtained primarily by income taxation rather than through duties and tariffs.
• The formal abolition of slavery, while racial discrimination has persisted.
• The enfranchisement of a much larger fraction of the population, such as giving Blacks and women the right to vote. The original electorate consisted exclusively of white men of property.
• The development of instantaneous communications, particularly television, the Internet, and social media, with next to no government regulation to insure truthfulness.
• The development of rapid global transportation, connecting virtually every corner of the globe within a day or two’s travel.
• The globalization of the production of goods and services.
• Widespread higher education.
• The federal government providing income to an ever-larger fraction of the population through transfer payments of various kinds, such as Social Security and unemployment insurance payments.

The framers of the original Constitution did not even mention joint stock public corporations and had no conception of the power that would come to be held by corporations.  Today these have become multinational entities, basing their operations in jurisdictions that give them the greatest freedom of action and the least restraints.

The framers of the original Constitution also did not mention political parties.  Although political groupings of interests were certainly known to them from events of the time, the Constitution does not address mechanisms to keep political parties from seizing the levers of power in the government in order to pursue partisan interests.  Today there is a duopoly of bitterly contesting parties, voting as blocs.

The framers of the Constitution instituted a very flawed mechanism for selecting the chief executive of the nation, the Electoral College.  While this mechanism was a compromise to get the support of the states with extensive slavery, it allows non-democratic elections to occur.  No other country has instituted an Electoral College in its governing system.

The framers of the Constitution did not anticipate the expansion of the institution of lobbying, where every legislative decision is vigorously contested by groups spending money trying to influence the laws being passed.  They did not expect that legislation would be almost exclusively written by the lobbyists, not the legislators themselves.

The U.S. Constitution has many implicit expectations based on common norms.  When the norms are violated, many of the mechanisms provided for in the Constitution don’t function properly.  For example, if a government official blatantly violates a law or norm and suffers no consequences as a result, the whole structure suffers decreased legitimacy and authority.

There was no anticipation of the development of existential threats that could end the United States as a nation and even terminate human life on earth, such as nuclear and biological war, climate change, critical environmental damage, and pandemic disease.  Nor was there anticipation of the development of other transnational threats such as international terrorism and international organized crime.

The framers of the Constitution provided a right, the Second Amendment to the Constitution, that has been the basis of controversy for its entire existence.  It is doubtful they intended the widespread ownership by citizens of military-grade rapid-fire weapons designed to produce mass casualties.  Alone among developed nations, the United States tolerates the existence of large numbers of citizen groups preparing and training to overthrow the government if they feel it has come to operate in ways they don’t like.

The distribution of powers between the Senate, which has the same number of representatives for each of the 50 states, and the House of Representatives, which has representation proportional to a state’s population, has resulted in many deviations from the principle of democratic majority rule.  Rural states with small populations have disproportionately large influence over federal decisions.

It is critical that contemporary citizens and decision makers in the United States appreciate how the structure of the Constitution influences the ways national decisions can be made and adapt governing processes to compensate for various limitations and constraints imposed by that structure.