Balance Act: Constitutionalism’s Challenge

Nob Akimoto

Nob Akimoto

Nob Akimoto is a policy analyst and part-time dungeon master. When not talking endlessly about matters of public policy, he is a dungeon master on the NWN World of Avlis

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35 Responses

  1. Nob Akimoto Nob Akimoto says:

    And yes, that’s the constitutional amendment on flag burning from The Simpsons.Report

  2. Avatar J@m3z Aitch says:


    I’m in agreement with you. The U.S. Constitution has some notable defects. It’s a pretty damn functional document given how few models of republican governance they had to work from, but there’s quite a few things I’d change.* I do think it’s too hard to change, but I wouldn’t lower the bar very far. And I stand firm on the position that “we’ve got a big temporary problem” is insufficient justification for thumbing our nose at it.

    * In my ideal we’d have an assymetrically bicameral parliamentary system, but I’m probably romanticizing the potential value of the weaker house as a body for reviewing and studying ideas free from constituent pressure. I’d stick with federalism, and even strengthen it, because of the size and diversity of the U.S. And I’d probably go for a list proportional system with a rule that to the extent possible each party getting seats has to seat members from multiple regions, to ensure representation of various regions; or do a mixed electoral system like Germany’s.Report

    • The Brits missed a great opportunity to shake up their political order a bit when they reformed their upper house. The replacement to the Lords should’ve been a PR system with preferential voting, rather than whatever half-assed thing they’re going to create now.

      My concern with making things too difficult to change isn’t so much that it’s too hard, but rather that it increases the likelihood of making nose thumbing and contortionism more likely than less as a solution to big temporary problems.Report

      • Avatar J@m3z Aitch in reply to Nob Akimoto says:

        Re: your 2nd ‘graph. I wasn’t clear, but I did mean that, too. Over-rigidty in institutions is bad in the first part because it means they’ll be ill-suited when conditions change, but bad in the second part because that ill-suitednes and the inability to fix it necessarily leads to anti-veneration.Report

      • Avatar J@m3z Aitch in reply to Nob Akimoto says:

        he replacement to the Lords should’ve been a PR system with preferential voting,/em>

        Three questions.
        1. Why that, instead of of abolishing it!
        2. What would Jack Aubrey say?
        3. Do you think he ever made it to the House of Lords?Report

      • 1) Because the unicameral nature of the British Parliament combined with Parliamentary Sovereignty is one of the worst enablers of horrendous civil liberties practices like “terror” detention and proliferation of surveillance mechanisms. Further, because even the new Supreme Court of the United Kingdom lacks the sort of judicial review functions that SCOTUS has, it doesn’t serve as an effective check on government. A functional upper house of Parliament (which would in theory be on equal standing as the House of Commons) that could serve as an empowered Law Lords to review and even invalidate Commons legislation seen to be incompatible with British liberties would be an improvement.

        2) Aubrey being Tory Member of Parliament (last we saw) would probably change his understanding of the reform acts depending on who was in charge at the time, and likely as part of his evolving views on liberty. It’s likely he would have supported the Catholic Relief Act of 1829, and perhaps even the 1832 Reform Act. He would, of course, note that he doesn’t really like or trust Catholics or city merchant fellows (and in the process apologize to Stephen), but it’s clear by The Yellow Admiral that Aubrey is substantially more amenable to democraticization and that the notion of one man, one vote actually starts to appeal to him.

        3) Yes, but not until the ascension of William IV. In fact, given how highly Clarence thinks of Jack Aubrey during the series, it would be surprising if William doesn’t try to pile honours upon Mr. Aubrey and for that matter, Dr. Maturin. At the very least he’d probably get an Order of the Garter knighthood, and likely a peerage that he wouldn’t turn down not because he wants it, but because he’d be thinking more of his son George (and possibly additional children he might have with Sophie after her “awakening”) as he makes clear in The Mauritius Command where he indicates having a male heir might change his mind, and later how important his “credit with his children” were to him in The Letter of Marque. Hell, I’d imagine what Sophie thinks would also be important to him, and she seems to appreciate those old timed values a lot more than he does. (She even argues he should have a peerage in Desolation Island)Report

      • Avatar J@m3z Aitch in reply to Nob Akimoto says:

        1. OK.
        2. Nah, too radical a break with tradition. Preventer stays is as far as he’ll go in bucking tradition.
        3. Aah, forgot Clarence didn’t drink himself before he became king. I know little of British history, and all I know of Clarence I got from O’Brian.

        Re: Sophie’s awakening. That’s one of the odder sub-stories in the novels, isn’t it? I get the impression O’Brian was a pretty frisky guy. Not that there’s anything wrong with that or the Sophie storyline.Report

        • O’Brian’s portrayal of Clarence is somewhat unjust at times, but is true to life of the man circa 1805 – 1818. The real Prince William then gets married in 1818, gives up drinking and takes up walking very long distances to keep himself fit (as he becomes 2nd in line to the throne). I like to believe that this is the influence of both Aubrey and Maturin, given Maturin’s tendency to give Jack lectures on his weight and recommending of walking, and that perhaps Jack doing so after becoming admiral then convinces Clarence that this is a good practice. (For if a Demi-God of naval prowess does the same, why shouldn’t Clarence follow him?)

          As Lord High Admiral starting in 1827, Clarence instituted several major reforms, including the abolition of flogging and instituting substantial improvements in gunnery training standards. Again, here, the influence of Jack might be apparent in a shadow history sort of way, with Aubrey perhaps being brought on as one of Clarence’s strongest advisers, and Jack’s hatred of flogging and love of gunnery impacting the decisions made by the Lord High Admiral.Report

        • And yeah. I get the sense that The Yellow Admiral‘s depiction of the Maturin/Villiers marriage is very much how O’Brian’s relationship with his wife was like and likely was also some projecting that led him to kill off Diana in The Hundred Days. I do liked that storyline, and kind of feel like Sophie is one of the most underused and underappreciated characters in the canon. If there was an author I could trust with the characters, I’d almost be inclined to say there should be “the other side” style stories where Sophie is the protagonist, akin to the ones where D’Arcy’s perspective is written about for Austen. (Of course if the quality of those D’Arcy works is an indication, then I don’t want anyone touching the character)

          Henrietta in RF Delderfield’s Swann series is a great example of how Sophie COULD have been used.Report

      • Avatar Matty in reply to Nob Akimoto says:

        The replacement to the Lords should’ve been a PR system with preferential voting, rather than whatever half-assed thing they’re going to create now.

        I believe that was the plan the LIb Dems put forward but then they added back in appointed members and even bishops (don’t start, I know establishment is an embarrassing anachronism) before dropping the whole thing when it became clear the Tories had no intention of coalition requiring any actual changes from them.

        So currently the plan is not to create anything but to leave the current half-assed structure dominated by retired MPs with a scattering of others in place. Though I expect at some point the parties will all pinky swear that they are going to introduce democracy to the upper house any decade now and we’ll go through the whole debate again.Report

      • Avatar Kolohe in reply to Nob Akimoto says:

        I believe that was the plan the LIb Dems put forward but then they added back in appointed members and even bishops (don’t start, I know establishment is an embarrassing anachronism

        There really is too much of bashing the bishops on this forum.Report

      • Well it’s all intellectual bishop bashing.Report

  3. Avatar Art Deco says:

    Constitutions are an interesting thing. Despite the ubiquity of participatory liberal democracy in the OECD, none of the states in that group really share much in the way of constitutional features (This, of course, is a boon for political science departments).

    All but seven erect parliamentary systems. Three have separation of powers. Three have a hybrid system. One has an idiosyncratic system.Report

  4. Avatar Art Deco says:

    To prevent say removing basic rights through amendment, you could even insert an eternity clause into the Constitution like the German Basic Laws to protect … the 14th.


    This is probably the last time I’m going to be polite about this, but I’ve noted before that you are not welcome in my posts. I realize not being able to complain about how it’s no longer okay to be a racist is troubling to you, but there are plenty of sites (and even threads) that are not mine where you can go bitch and whine about that. Now, goodbye now. -NobReport

    • Avatar Art Deco in reply to Art Deco says:

      The 14th Amendment has been used for more than forty years as an excuse for judicial mandarins to annul any sort of legislation they do not care for. It needs to be repealed just to restore democratic discretion. You should know that.Report

      • Avatar Morat20 in reply to Art Deco says:

        Oh, mandarins. Nice. It’s a good word. If only it substituted for logic, reasoning, argument, evidence, or any of the things that might change people’s minds.

        Hint, hint: Even the conservative choir here isn’t the one you’re used to singing too. Might want to change the tempo.Report

      • Avatar Art Deco in reply to Art Deco says:

        If only it substituted for logic, reasoning, argument, evidence, or any of the things that might change people’s minds.

        I would be more impressed with this complaint if you and “Nob” could manage something other than attitudinizing and insults.

        Happy trails.Report

      • Avatar Morat20 in reply to Art Deco says:

        Well, Art, you don’t give us actual arguments to engage. Just screeds, baseless claims and what amounts to your political catechism.

        Which would be awesome and acceptable if you were establishing your in-group bonafides at a “keep Government out of my Medicare” rally, but doesn’t really fly with a group consisting of people who don’t participate in your particular groupthink.Report

  5. Avatar LeeEsq says:

    The worst aspect of the United States Constitution is the difficult amendment process. It makes implementing any structural reform of the political system more difficult than necessary. Most of our Amendments were more about expanding rights than reforming the political system.

    I really don’t blame Madison for not producing a parliamentary system. The parliamentary system was in its infancy at the time while separation of powers was cutting edge and better developed than the parliamentary system.Report

    • Avatar J@m3z Aitch in reply to LeeEsq says:


      Madison actually proposed a sort of parliamentary system, with the legislature selecting the executive (although The exec was not called a PM and I don’t think it was specified that the exec would or would not be a legislator–kind of a gloss in the planning. It was actually Gouverneur Morris who insisted on non-legislative selection of the executive, giving us our separation of powers.Report

  6. Avatar Will Truman says:

    I’d be curious what y’all think would be a reasonable threshold for amendments? I agree that it’s too high for the reasons that Nob states. However, I’d rather it be too high than too low, so I am a bit torn.Report

    • Yeah, I’m torn, too. And not sure what the standards should be. We can dispense with the idea that there’s an ideal standard. And it’s worth reminding our liberal friends that lower standards quite likely would have produced balanced budget, anti-flag burning, and anti-same sex marriage amendments in the last twenty years to match the equal rights amendment they might have gotten.

      There’s a nice bit of research I know of that looked at referenda and initiatives in the states that have that process, and while most initiatives and regetenda fail, the ones that restrict rights pass at a considerably higher rate than others.

      So, lowering the bar? A little, but not too much if you care about civil rights and liberties.Report

      • The literature on what the “right” threshold for amendment is, is difficult to wade through. From what I recall Ferejohn modeled regression analysis that showed super-majority requirements didn’t actually have a statistically significant impact on rates of amendment. Bjorn Rasch found that it’s more the number of bodies/actors that have to formally amend a constitution that increases the difficulty in doing so.

        The 3/4ths state requirement basically means that the US has to go through 38 state legislatures before it can be ratified. That said, in the current political environment, I think it’s more the amendment tabling processing (constitutional convention of 2/3rds of the states or a super majority of both chambers of Congress) is what presents the biggest problem, as it effectively places a procedural hurdle including additional actors.

        Something like a simple super majority national plebiscite of 2/3rds majority might actually work as a lower, but still relatively high bar. The proposal process can simply be changed to requiring approval from a majority of state legislatures, or a majority of both chambers of congress plus president.Report

      • Also, like I noted in my post, there should be something akin to an Eternity Clause in the German Basic Law, which basically prevents certain things from being altered, including the fact that human rights are inviolable and certain provisions MUST be respected by any law.

        I could see such a clause with the Bill of Rights and the subsequent “rights” amendments being inserted as part of an effort to make amending the constitution easier.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch says:

        I’d get behind an eternity clause, or perhaps just our current high bar, for any civil rights protections. And I’d suggest a 3/5 majority in Congress, just to ensure the current majority party couldn’t capitalize on a temporary public passion. Maybe 3/5 of state legislatures, too, for the same reason.

        What about 3/5 vote in both chambers of Congress in successive sessions, a model some states have? Although with only 1/3 of the Senate up for re-election biennially and extensive gerrymandeting in the House, the second vote may be more pro-forma than an actual standard.Report

      • Avatar Kim in reply to J@m3z Aitch says:

        All well and good, but do we really want the most likely to succeed amendment (from the past 30 years, at least) to be “Let Reagan have another term?”Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch says:

        Yes, I’d happily remove the two-term requirement. Term limits have not proved to be a good idea at either the state or federal level.Report

  7. Avatar Burt Likko says:

    I want to take on this concept: “Large constitutional states tend to require more flexibility and adaptability, and arguably the greatest feature allowing for the US Constitution’s longevity is its common law system.” The US reliance on British-style common law is indeed a great feature and a function of a great deal of adaptability within the Constitutional system — made so because the Constitution’s text is not particularly specific. Common law interpretation of the foundational law becomes less important as that law grows more detailed.

    I say, feature and not bug, but only possible if built upon a strong cultural foundation o the rule of law. It’s much more difficult to do in a culture coming out of a history of dictatorship or a body politic plagued by overt corruption. Individual legislators or judges may prove unreliable, but the legal process as a whole must command respect. Consider Britain: as @nob-akimoto points out above, the unicameral command-centric nature of its constitutional system is a fertile breeding ground for the trampling of civil liberties, yet why isn’t it much, much worse than it is in the UK? The British have a bedrock trust in the rule of law, even as particular lawmakers and particular laws prove untrustworthy.

    If a nation is fortunate enough for this to exist, then a more minimal constitution reliant upon the legal process to flesh out the details like how legislators are chosen and when individual rights trump the exercise of state power is possible and will over time produce a flourishing polity.Report

    • Avatar Will Truman in reply to Burt Likko says:

      A variation of “laws must step in where culture fails” (or where cultural norms fail). The stronger a sense of cultural norm, the less rules have to be written. This is true both in terms of law, and constitutional limitations. The more cohesive the culture, the less is often going to be required. The larger and more diverse a place is, the less of a unified culture, the more that people are going to rely on written laws (or want to rely on them).Report

  8. Avatar Kolohe says:

    I think necessitate that not only do we more clearly define certain rights, but also put in more specific limitations on government power. A right of data privacy and ownership needs to be enshrined, given the difficulty of convincing the judiciary that such a thing exists with a third party rule.

    I don’t think these listed policy prescriptions require a Constitutional change though; a legislative change is good enough – and a lot easier to obtain.

    The biggest blind spot* the founding generation had was the idea that legislatures would be mostly capable of protecting individual rights. They have, of course, been famously *unable* to do so – but the failure mode has almost always in the ability to protect the rights of unpopular ethnic minority members from the tyranny of the majority. (mainly because the founders didn’t think of anyone else but white people being Americans).

    But the failures you wish to address regarding privacy and ownership in the information age are much more amenable to legislative solution, because they are about shaping the power of the government as it relates to the majority of the citizenry, and indeed the whole of the citizenry.

    *slavery wasn’t a blind spot, it was an intractable problem that was punted. And relations with native American peoples weren’t a blind spot, it was conscious (and very popular) policy.Report

    • Nob Akimoto Nob Akimoto in reply to Kolohe says:

      I always get leery of legislative attempts to codify rights, because you just know some company who relies on violating privacy might come out and complain it’s not constitutional (and that a portion of SCOTUS is always so corporatist in thought process they’d likely at least lend that argument credence)Report