1. Has the US Constitution failed? (version 10)

by Wen 2013

Many Americans, especially libertarian and rightwing Americans, have a very positive opinion of the US Constitution. This is understandable - if the US government strictly followed the Constitution we would live in a freer society. But the fact that government has grossly exceeded constitutional limits suggests that the Constitution is ineffective at enforcing its own promises of freedom. For this and other reasons I believe that the Constitution is a deeply flawed document.

The US political system suffers from three major flaws: 1) It is not representative. Swing states and small states have disproportionate power, and this causes ineffective and unjust policies that benefit these states at the expense of others. 2) It is too complicated. It is too difficult and requires too much effort for the average voter to accurately evaluate the performance of the huge number of elected officials at the federal, state and local levels. This allows two factors to dominate politics: special interest groups, which do have the incentives and resources to evaluate politicians, and partisan ideology which acts as a short cut to real evaluation. 3) It does not effectively limit the size and scope of the government. The Constitution depends too much on mere stipulations to limit the government (e.g. "powers are reserved ... to the states"). But these stipulations can easily be ignored by the government. Instead the Constitution should rely more on mechanisms (e.g. judicial review, laws expiring, etc.) to limit the government.

In my opinion these flaws are so serious that the US cannot fairly be called a free country or a democracy. Here I propose constitutional changes at the federal and state levels that would make a better constitution. While these proposals may seem radical, I believe these are among the least radical effective proposals.

1. All laws (excluding constitutional amendments) should expire after 20 years. The Constitution makes it difficult to pass and repeal laws. Both chambers of Congress and the president must agree on the change. When the country was young and there were relatively few old laws, this biased our country towards freedom. Now it does no such thing and may even bias us against freedom since politicians will work harder to pass a new law than they will to repeal an old one. The key problem is that politicians are more inclined to pass new regulation than to repeal old regulation. The result is that regulation increases over time often far beyond any optimal level. Furthermore this regulation often reflects problems or phobias of the past rather than current needs.

2. The Senate should be abolished. The Senate skews representation towards less populous states. And there is evidence that this results in biased government policy.

3. Representatives should be elected according to a new system that I call individual proportional representation (as opposed to party list proportional representation). This system combines the benefits of party list proportional representation with the benefits of plurality voting. In particular, minority (e.g. libertarian, green, etc.) viewpoints would be well represented and the need for compromise voting would be low, but voters would vote for individuals rather than political parties. Every state would be assigned a certain number of points (N) in proportion to its population (e.g. California could get 53, Texas 32, etc). Candidates in the election would receive points according to the formula points=floor(%votes*N) and the leftover points would be assigned to the candidates with the largest remainders (%votes*N-floor(%votes*N)). Every candidate receiving at least one point would win a seat in Congress and his voting weight in Congress would be proportional to the number of points he won. For example consider a state with 13 points.

Candidate        %Vote    %votes*N    PointsWon    VotesinCongress
Smith (R)        25       3.25        3            3
Johnson (D)      21       2.73        3            3
Williams (R)     15       1.95        2            2
Jones (D)        11       1.43        2            2
Brown (I)        10       1.3         1            1
Davis (I)        9        1.17        1            1
Miller (R)       4        0.52        1            1
Wilson (I)       2        0.26        0            NA

4. Terms for the House of Representatives should be extended to four years, and elections for Congress should be held two years after presidential elections - not during the same year. Because voter preferences for Congress may be affected by who is President and vice versa, this system would allow voters to make more informed decisions. Furthermore it would prevent one political party from dominating the government because of an unusual political environment during election time.

(5. For a single winner contest approval voting is probably preferable to plurality voting. But the impact of this change would probably be fairly modest.)

6. Changes similar to the above proposals (1-5) should be made at the state level.

7. The large number of elections and referendums at the state and local level should be reduced. It is unreasonable to expect that the average voter will accurately evaluate candidates for dozens of offices and positions on numerous referendums since he lacks both the resources and incentives to do so. This allows two factors to dominate politics: special interest groups, which do have the resources and incentives to evaluate these candidates and positions, and partisan ideology which acts as a short cut to real evaluation. Preferably voters would only vote in three state and local elections – for governor, for the state house of representatives and for a mayor or sheriff.

8. We should rethink federalism. Division of power between federal, state and local government was supposed to preserve liberty. In practice it means that we are subjected to federal, state, city and county regulations! The federal-state division in the US is too entrenched to challenge, but the power of local government to enact laws, regulations and taxes should be abolished.

9. The constitutional stipulation that children born in the US are US citizens should be abolished. But no one once recognized as a US citizen should be involuntarily deprived of US citizenship unless fraudulent claims were used to acquire citizenship.

10. The electoral college should be replaced with popular vote. The electoral college encourages politicians to favor the interests of swing states over the interests of solid red and solid blue states.

Is it realistic to talk about changing the Constitution? I believe that the US is heading towards a crisis point, possibly as early as 2030. At that point the potential for radical change, good or bad, is very high. Therefore it is necessary to think carefully about political reform now.

I also believe there are some changes we should not accept. In particular the Bill of Rights and the freedoms promised by the Bill of Rights should not be altered or diminished in any way. Some leftists may think it wise to restrict second amendment freedoms, and some rightwingers may want to restrict first amendment freedoms by outlawing flag desecration. But the benefits of these changes would be modest at best, and the risk from altering Bill of Rights freedoms is far too great.

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