The Constitution Sucks

No wonder it doesn’t work after 250 years.

Fresh off Zohran Mamdani’s stunning primary successes—in which his endorsements helped three left wing challengers unseat centrist incumbents—ABC News journalist Jonathan Karl asked the New York City mayor if he would change the US Constitution to change its citizen-at-birth clause. That Constitution states that only people born as US citizens can become President. Mamdani was born in Uganda; he’s a naturalized citizen. So even though he is already at 34 a popular and powerful Democratic politician, he can’t become the nation’s chief executive.

Mamdani answered, with a deprecatory smile, “I think the Constitution looks good the way it is.” Of course he has to say that; criticizing the Constitution for such transparent personal political gain is just handing your opponents an attack line.

But the truth is that the native-born citizen requirement for the presidency is racist, nativist, and wrong. There is no reason, other than rank prejudice, to believe that someone born in the US is a more loyal citizen, a better person, or a more fit President, than someone born abroad. Donald Trump was born in the US and is about as unfit as you could possibly imagine a president to be.

Americans tend to treat the Constitution as a holy document, handed down to us by unimpeachably brilliant demigods of democracy construction. The truth is though that it’s filled with bigoted nonsense and poorly constructed kludges. Part of the reason that Trump, the Supreme Court, and Republicans have been so successful in attacking our democracy is that our democracy is built on a badly constructed and rotted-through foundation.

This doesn’t mean we need to chuck the Constitution altogether, or cease to defend it from Trump’s depredations. But I think we do ourselves a disservice when we allow our imaginations to be limited to the imagination, and the moral vision, of the Founders.

—

Everything Is Horrible is entirely supported by reader contributions. Please consider becoming a paid subscriber; it’s $50/yr, $5/m.

The Constitution is bigoted

Most people if pressed would acknowledge that the Constitution contains a lot of bigotry. What else can you say about a document prepared by a bunch of slaveholders who decreed that Black people only counted as 3/5 of a person each?

The racism at the core of the Founders’ plan was only one aspect of their prejudice. They denied the vote to women and native people. They put in age requirements for office. Mamdani is also too young to be president at 34, even though, again, there is no moral, ethical, or rational basis for arguing that younger adults are less qualified than older adults to govern or lead. (Eighty-year-old Trump is again the test case.)

More, as Osita Nwavenu’s recent book The Right of the People: Democracy and the Case for a New American Founding makes clear, the Founders hated and feared the poor with a bleak and blinding passion. The Constitution was inspired in large part by Shays’ Rebellion—a 1786 revolt by farmers in Massachusetts demanding debt relief. Panicked elites worried that the republican sentiment that had defeated the British might result in the proliferation of paper money (gasp) and upward mobility (double gasp) and many seriously considered returning to a monarchy.

The wealthy white delegates to the Constitutional convention decreed that the Senate should be elected by state legislatures to shield it from populist influence; similarly, Electors chosen by state legislators would select the President. Lower House districts were made large and unwieldy because the delegates believed it would be harder for rabble rousers to gain control of them. As Nwavenu writes:

As a whole the Constitution was crafted by a set of the nation’s political elites to address perceived crises that governance under the Articles had either caused or ineffectually responded to. And chief among these crises—as far as most Founders were concerned—was an “excess of democracy” in the states.

The Constitution was a document intended to make sure the right people—white, male, wealthy, old, native born (but not of course Native American)—retained control of the country. Over time, through popular pressure, court decisions, and amendments, many of the groups excluded by the Founders have been given more power and more say in government. Yet some restrictions (on foreign born citizens running for president, for example) still remain and are rarely questioned. More, the Founders’ poor decisions—the fact that when we fight for justice, we are often fighting against them, not with them—is rarely stated explicitly. This gives “originalists” a great rhetorical advantage and makes real change more difficult.

The Constitution is poorly designed

Over to the side of, and/or intertwined with the bad intentions of the Founders, they also made a whole range of foolish decisions about how to organize the government. Chief among these, with implications that we are still struggling with today, is their assumption that they could ignore, or somehow avoid, the issues of partisanship.

The Founders were no stranger to political parties—the Whigs and Tories had existed in England for 100 years by the time the Constitution was drafted. But the Constitution largely assumes that the main power struggles under the new government would be between the branches of government, rather than between factions which would contest each branch.

The result was an unworkable mess. Electing the President and Vice President separately led to major problems when they were of different parties, it turned out. The sweeping consensus needed to change or amend the Constitution turned out to be extremely difficult to muster in a hotly contested partisan atmosphere where a determined minority could block most changes. Even simple legislation can become impossible. And as we’ve seen in our own day, many of the supposed checks and balances to prevent concentration of power—impeachment and removal, Supreme Court review—barely work at all when a single party controls multiple branches.

There are also weird byways—like the disproportionate power of small states—that were pragmatic efforts to reconcile competing interests that everyone recognized at the time were foolish, and which some probably hoped could be fixed later, but never were. The Constitution as a result is a badly designed engine of evil which has been tinkered with and nudged and retrofitted to try to get it to be less evil. Add in the massive transformations in US society, and the result is a lot of dysfunction and mess.

The Electoral College, gerrymandering, impeachment, the second amendment, the massive variation in voting power between people in Idaho and people in California, and on and on. We have a government that largely prevents us from solving our most pressing problems, which empowers the worst people on earth, and which we are all supposed to regard as a work of unmitigated brilliance. No wonder so many people find politics alienating and enraging.

Better things are possible

Again, I understand why Mamdani isn’t going to say this, or anything like it, in an interview. The Constitution is viewed by many as sacred; the Founders are too. We’re supposed to view them as totemic guarantors of American virtue and American superiority. Part of American identity is reverencing the Founding and all its works. If you’re an American politician, you want to get that reverence on your side; you don’t want it to run over you.

But I think it can be worthwhile to challenge some of the received wisdom and the enforced genuflections. That’s because we need to fight against some ideas—like second class status for immigrants—that the Founders endorsed. It’s also, though, because we need to recognize that we have the right and responsibility to forge our own democracy, out of our own circumstances and values, just as the Founders had the right and responsibility to forge theirs. As historian Erik Loomis wrote in a piece about the very ugly actions of labor organizers Cesar Chavez and Delores Huerta:

… we have to take down the Mt. Rushmore model of studying history. We compare ourselves to great organizers such as Huerta negatively, as if we can never live up to their greatness. But maybe we can do better than they did, especially if we know what really happened. They were just people trying to figure it out. They had huge egos. The corruption that comes with too much power affects nearly everyone who achieves it. We have to be honest about all of this, not to slam on the past, but because it matters so much for us today.

The Founders were terrible in many respects; the Constitution is ill-conceived and doesn’t work. That doesn’t mean we should give up. It means that rather than thinking of ourselves as failing a heroic legacy, we can think of ourselves as in a position to maybe take the uninspiring legacy we’ve got and—like the Radical Republicans after the Civil War with their new antiracist amendments—do something better with it. We don’t need to restore the government that gave us Trump. We need to change it so we can never get a Trump again.