Can You Think of a Single, Itsy, Bitsy, Teensy, Weensy Defect In the Constitution as Originally Conceived?

Comments

1
If the Republicans think the constitution is so perfect, why are they trying to remove Thomas Jefferson from the history books?
2
only men voting?
3
Slavery pops to mind (of course) as well as the fact that women couldn't vote and were little better than slaves in many ways.

I guess the republicans don't have a problem with that sort of thing?
4
@1 FTW
5
No public option.
6
If the original constitution wasn't defective, then why did we have to amend the damn Bill of Rights to it? (You know, right to bear arms and such) They should've been included in the first draft!
7
Well, constitutional literalists would point out, rightly, that the word "slavery" is never mentioned in the constitution. The framers were aware even in 1787 of what a contradictory elephant in the room slavery was, and couldn't even bring themselves to mention it.
8
My mom learned at 50. Kagan's 50. You still have (a little bit of) time, Dan.
9
Three-fifths compromise.
10
This probably goes without saying, but if the original constitution was flawless, then why are there amendments, including the first ten, known as "The Bill of Rights?"
11
Using the horrid original flaws of the Constitution as an excuse to enshrine into law other flaws should never be acceptable. The Constitution should be built upon to further strengthen our nation and not to weaken it.
12
@7 - Yeah, but even if you accept that truly boneheaded argument, the fact that the Constitution didn't affirmatively outlaw slavery, which was widespread throughout the states, from the get-go, is itself a pretty big defect.

Besides, you've got the fugitive slave clause, Art. IV, Section 2: " No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

Trying to make an argument out of the fact that the Constitution uses the words "Person held to Service or Labour" is pretty absurd.

The framers were aware even in 1787 of what a contradictory elephant in the room slavery was, and couldn't even bring themselves to mention it.

Excellent point.
13
Hell, we don't even have to go into issues like slavery to find defects - or at least elements of the Constitution that did not stand the test of time. For instance, Article I, Section 3:

"The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years; and each Senator shall have one Vote."

I, for one, am very glad to see direct election of Senators.
14
Truthfully, most of my problems aren't with the constitution, but with the way it's been "interpreted" over the years. That said, there are a few minor flaws that I'd change, but only a few.
15
Besides the obvious (3/5ths compromise, no women voting), it also didn't have the 14th amendment's due process and equal protection (very important part of law today)... And we still don't have comprehensive anti-discrimination language (gender and sexual orientation aren't included as they are in some modern constitutions)

And some less glaring issues that perhaps were less defective at the time, but are (imo) obsolete would be the Electoral College and... the Senate. At least the Senate as it exists today. Perhaps a bicameral legislature is a good idea, with one being smaller and more stable (longer terms). But I think we'd be better off if it was more representative. Also, excluding DC from federal elections was a pretty big mistake, although it made sense to them as they weren't expecting it to ever grow to a substantial population. And DC still doesn't have full representation to this day.
16
Oh look what's back. No further comment.

Excluding the Bill of Rights (consider it part of the original packaged deal), every amendment ratified since is an exhibit group for its original defects.
17
@13: So indeed. Canadians look south of 49 with envy on this one.
18
That is, if the Senate were more representative by population. No offense to Wyomingites, but I don't think that their opinion on legislative matters is 36x more important than New Yorkers'.
19
@16 Except Prohibition.
20
Why do you need a driver's license to be on the Supreme Court? (I haven't had one since 1992, and I'm doing just fine.)
21
@18 Then it would be the House. Equal representation of smaller states is the whole point of having two legislative bodies.
22
Please, Dan you're age prevents you from sitting on the high court. Gee, they look for people under 70 years old, not over 70.
23
@17 - I wouldn't say that Canadians want to have elected senators. If anything that would introduce money to the equation and make things worse.
24
@11: Yes indeed. What exactly are you referring to as "[u]sing the horrid original flaws of the Constitution as an excuse to enshrine into law other flaws"? Bush's attempt to amend the darned thing to prohibit gay marriage?
25
Being able to drive is a requirement? I would be afraid of most of those moldy old fogies being on the road at their age. What else is an irrelevant requirement--animal husbandry? Falconry? Ooh, being able to sing in key!
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@19: At the time, they saw it as a defect meriting amendment ratification. They of course changed their mind a generation later. All, however, reflect an interpretive disagreement with the original framework.
27
The lines of text aren't quite parallel.
28
Wes, let's rush out and get the senate to vote to weaken it's own power.
We'll meet back here for breakfast after it's done!
29
Not Wes, I meant 'yes'. Why can't these coments be edited?
30
No religious test for office. Only good god fearing christians should be able to hold public office, everyone knows that!
31
When critics begin looking at things like whether or not she has a driver's lisence, they are scraping at the bottom of the barrel.

Case in point: I remember when Sotomayor was nominated, one conservative web site criticized her for being insufficiently rich; she had very little in savings, and had never owned a home--only rented.

One commentator, responding to that site, pointed out that, as a federal judge, she had such generous pension and health benefits that she was in no real need of a fat IRA, and that her rent-controlled apartment was such a good deal that it made no financial sense to buy.

But if people don't have logical reasons to object to a nomination, they'll look for illogical ones. Like whether or not somebody drives.

32
When she was Dean at HLS, she said the military could not recruit on campus because of DADT. She sounds like my kind of woman.
33
I got one!

It's that illegal Canadian immigrants only get 4/5ths of a vote while slaves get 2/5ths of a vote!
34
Whoa, whoa wait--Dan doesn't have a DRIVER'S LICENSE?!?! What happened, Danny, too many DUIs?
35
The idea that the intent of the Founding Fathers would have been their inherent knowledgeability to deal with assault rifles (with which to hunt squirrel), gay rights and human cloning. Is there anything more disturbing than to hear some right (or left) wing gasbag intone: "This is not what the Founding Fathers intended or meant or wanted"? These people are playing the mental Ouija Board card.

Well, what is more disturbing? pubic crabs? old, crabby white men?
36
Given the immigration uproar, I'd say this one drives some people batty:

all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'[23]

Every child born in the U.S. to an illegal immigrant is a U.S. citizen.

I think some conservatives would see this as a problem.
37
Oh, slavery. Easy one.
38
@34:
"Vegeta! What does the scouter say about Dan's sarcasm?"
"IT'S OVER MY HEEAAAAAD!!!!!"
"WHAT, YOU DIDN'T GET THAT JOKE? THAT CAN'T BE RIGHT!!!"
39
Vague commerce clause.
40
Postal regulations used to imprison Canadian exporters of substances legal at the time that the Constitution was written?
41
@39 -- Word.

How about requiring an "actual enumeration" of citizens every ten years instead of allowing statistical sampling?
42
Yeah, I think the lack of freedom of speech is a pretty solid choice.

Keep in mind that if slaves had just not counted as people outright (as opposed to 3/5) then slavery might have ended sooner - having them count as people helped increase the impact of the southern voting bloc.
43
Let's see. The right to vote was pretty limited.

Blacks were 3/5 a human. Actually it was slaves but I don't believe there were too many free blacks around then. The south wanted slaves counted in apportioning Congessional districts even though they did not have the right to vote.

I'm surprised Michael Steele doesn't know this but I guess you have to be pretty stupid to be an Uncle Tom.
44
@21 The level of proportionality isn't the only difference between the Senate and the House.

They also have longer terms, staggered elections, a smaller size, different procedures, certain roles are restricted to them (they carry out the trial in a case of impeachment, for example), the VP has a tie-breaking vote, etc.

Even if the Senate were made to be generally proportional, it would still be less proportional than the House if it had a significantly smaller size (since states like Wyoming would still be guaranteed one seat, and they'd be even further below the average population for a seat than they are in the House), and it would still be a rather different institution if it retained its lengthier terms. If the Senate was still 100 seats, Wyomingites would still have 6x as much voting power in the Senate as California, for example. Not quite the 66x voting power they have now, but I think we can agree that 6x the voting power is enough of a bias in their favor, don't you think? Or it could just as easily be 2 Senators per state + 50 extra seats to be distributed proportionately, or something like that.

There are other countries that have proportional representation or mixed federal-proportional representation in their upper houses. Or, on the other hand, less wildly varying populations in their divisions, which has the effect of making them more proportional.
45
The Constitution was not defective.

It provided the most liberty that society would tolerate when it was written, and it contained the mechanism to evolve and improve as society would tolerate it.

It has functioned marvelously since its creation.

It does not produce perfect government; but, better; it produces the government that the people deserve, and provides the means for as much enlightenment and progress as the governed will have.

There has never been a better form of government in the history of mankind.

Definitely not defective.
46
There has never been a better form of government in the history of mankind.


Never, ever, never. Nope. I don't even know nothing about history and I know no group of people have ever gotten together and decided upon a better way to make decisions than the system created by our Founding Fathers.
47
@45: If it's not defective, why have we been modifying it to serve our needs better?
The Constitution IS defective. However, its defects lie within what an engineer or statistician would call "acceptable bounds". Basically, it is not as good as it could be, but it works reasonably well.
48
@47: "Basically, it is not as good as it could be, but it works reasonably well."

And clearly there was a recognition at the outset that it was not perfect, which is why there was a means of amending it written into the Constitution from the very beginning. Those who like to put The Founding Fathers (whoever they may be--the list seems to change) on a pedestal forget that not only were they not perfect, they were humble enough to realize they couldn't think of everything.
49
"not perfect" is not the same as "defective"

The Constitution served well when it was written and has served every generation since equally well.

Not only is it not defective, it carries within itself the ability to adapt and change to meet changing situations and needs.

Sublime, Elegant and Inspired.
50
Two points:

1) The Bill of Rights was not a correction of flaws or missing items. The main problem with the BR stems from a lack of understanding of the purpose of the constitution (as stated in the thing itself pretty clearly and more than once) and shown in everyday speech in the oft heard statement, "The constitution doesn't give you the right to..." How sad so few of us have even read that document and fewer still understand it. The purpose of the constitution is to structure a federal government and to LIMIT THAT GOVERNMENT. As it states clearly, ALL THE POWERS given to the federal government come from the people. The rights and powers started with the people. So the constitution is a document whereby the people surrender a small set of their rights to the federal government and the people RETAIN ALL THE OTHER RIGHTS. So, in other words, the constitution DOES NOT GIVE US RIGHTS. We the people GIVE A SET FEW RIGHTS to the federal government and keep all the rest. So one camp thought the bill of rights to be unnecessary and possibly harmful by undermining the idea that the rights are ours and we give some up. Others feared that some rights were so important they needed special protection but understood the precedent the BR might set in undermining the direction of the rights being granted, so they included the 9th and 10th amendments to clarify that. Both had good points on their side, but the second camp won. Thus, the BR as we have it: special protection for certain sacred rights (not missing from the original because the forgot but because all rights not given the federal govn't were the peoples', those included by omission from the list given to the fed) and a restatement of that principle in the 9th and 10th amendments. Sadly, the 9th and 10th amendments are so sadly IGNORED.

2) So MANY jumps to assumptions! For one, you all seem to assume that an amendment is THE correct fix to a definite flaw. Not the case at all. For one example already mentioned, the direct election of senators vs appointment by state legislatures at its root is just a change in procedure, one of many possible ways to fill one of the houses of the legislature. In this case the fix is more flawed than the original. The checks and balances built in by the founders had a bicameral legislature for a reason: the house was to represent the people and the senate was to represent the state governments. Now we have two houses representing the same thing. Not only is it wasteful, it makes the representation more skewed (as pointed out by a prior poster) and very much weakens state governments' ability to defend themselves against the federal powers (unfunded mandates, for one thing), pretty much taking away ANY voice the state governments had at the federal level.

The constitution as well as the declaration of independence were both flawed, especially when it came to freedom for all people. The declaration of independence as written by T Jefferson before being edited in Congress acknowledged the slaves as equals deserving of full freedom:

From http://www.wsu.edu/~dee/AMERICA/DECLAR.H…

"He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivatng and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of INFIDEL powers, is the warfare of the CHRISTIAN king of Great Britain. Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce. And that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people for whom he also obtruded them: thus paying off former crimes committed against the LIBERTIES of one people, with crimes which he urges them to commit against the LIVES of another."

but the southern colonies wouldn't approve it so that entire part (among others) was stricken.

51
As conceived? Wasn't slavery in there when it was conceived? How about having the country made up of dozens of independent little nations, the way the states were originally conceived? Or the rights only applying to men, as originally conceived? Even the authors knew the possibility existed that this new experiment in democracy might have to be tweaked; that's why they made it possible to amend the constitution.
52
@49: I'm sorry, I can't hear what you're saying. Maybe you should take all of those Teabagger dicks out of your mouth and repeat yourself.
Perfection is the lack of even the smallest defects (also known as "imperfections"). If something is not perfect, it BY DEFINITION has one or more defect(s) of some nature. Bingo; you're an idiot.
53
Marshall said the Constitution was “defective.”

Possesing some imperfections is also not the same as "defective".

You, college boy, are not perfect, we'll wager.

Would you describe yourself as "Defective"?
54
So Dan thinks the Constitution's original handling of slavery rendered it "defective"?

yes-
Perhaps it would have been better that the Constitution outlawed slavery from the beginning.

Perhaps it would have been better that, instead of THE United States of America there were several nations created after the Revolution.
A slave free small Northeastern nation.
And a much larger slave holding nation of the South and Middle Atlantic states.
They could have fought wars periodically.
That would have been nice.
The slave holding nation would have expanded much faster and farther.
Perhaps even pinning the slave free nation in and cutting off it's expansion.
A slave holding nation stretching from Atlantic to Pacific.
Probably would have gobbled up a lot more of Mexico and Central America as well.
Nasty brutes, those slave holders....

Yes-
a perfect undefective Constitution would certainly have created a better world.

In fact, the Constitution should have legalized homosexual marriage, as well.
Bad bad homophobic founding fathers!

And outlawed religion.
For sure.

In fact, there should have been a Perfect HomoLiberal Theocracy from Day One.
Enlightened Progressive Judges
dictating to the American people
what they could and could not do.

right, Dan?......
55
@53: Yes, I am defective. I have a spine and pelvis that are bipedal adaptations of parts that evolved to be optimized for quadrupedal movement. I have an occasional urge to rip someone's throat out with my teeth. I obtain a lot of my humor at the expense of others. I don't always eat properly. Need I continue?
Yes, we are all defective in some way or another. You are even more moronic than I thought if you think that imperfections are different from defects.

@54: No, of course not. We cannot expect any system of government to be drawn up perfectly from scratch. What is a problem is when people put the Founding Fathers on a mile-high pedestal and consider the Constitution holy to the preclusion of any improvement. The good old boys expected that it would require some sort of editing as times changed, and that is why they put in a process for making amendments.
Also, your argument that keeping slavery legal for the time being was a GOOD thing is equivalent to the kind of appeasement that Chamberlain showed Hitler.
"Let us not become the evil that we deplore." --Barbara Lee
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55
Try to keep up, jr.
Keeping slavery was not good thing.
It was the only thing.
There was no power in 1787 that could have done away with slavery.
What the founding fathers did was develop a system of government that united a disparate people, granted them liberties unheard of at the time, and was able to eventually (and as soon as was possible...) eliminate slavery, grant the vote and rights of citizenship to blacks and women and make a host of other adaptations to keep the Constitution vital and relevant for centuries.
A mile-high pedestal doesn't come close to being adequate.
57
The founding fathers did not "[unite] a disparate people, [grant] them liberties unheard of at the time." They pretty much granted liberties to free white males like themselves.

The USA lagged shamefully behind many other nations in abolishing slavery - including their former colonial masters in England, which banned the slave trade in 1807 and ended slavery in 1834.

You weren't exactly world leaders in women's suffrage (1920, 27 years after New Zealand) either. Or universal suffrage, which wasn't truly achieved until 1965, thanks to the civil rights movement and the Voting Rights Act.

The Constitution did certainly allow the USA to evolve into a more fully free society, but many other countries achieved the same thing over the same time period. Several did it quicker - and without having to go to war with themselves to achieve it.

Honestly, I'm with venomlash - the fetishistic hero-worship of the "founders" is ridiculous. It turns them into secular evangelists and the Constitution into some sort of holy book. The resulting overlap between Biblical and Constitutional fundamentalism is hardly surprising.
58
Besides slavery, women, and the Bill of Rights...

African (international) slave trade protected for the first 25 years (which even some of the people at the time thought was a bad idea).

Senators chosen by the state legislatures.
59
57
The Freedoms of Religion, Press and Speech Americans enjoyed in the 1700s are to this day unmatched in Europe and Canada.

In some American entities women got the vote earlier- 1869 in Wyoming and 1870 in Utah, for example.

Britain certainly was inspirational in it's efforts and leadership abolishing slavery.
However America has come along pretty well, we have a black President and I don't think any of the Enlightened Progressive nations of Europe or Canada have managed that yet.
We'll keep pulling for them....
60
57
And just how many wars with itself has Enlightened Progressive Europe fought since the American Constitution was adopted?
And how many millions has Enlightened Progressive Europe slaughtered thru genocide, just in the past century, even in the past 20 years; and didn't America have to come to the rescue to stop Enlightened Progressive Europe from slaughtering itself all those times?....
61
@59: Sure, we don't see a whole lot of black heads of state in European countries. (Although there are a decent few black members of European royalty.) You know what, though? It's not because they hate black people the way a lot of Dumbfuckistanis do. It's because:
A: Most European countries have smaller proportions of Africans.
B: Monarchys are common in Europe, and apart from minorities marrying in, they are all more or less white.
Your claim that American racism no longer exists just because we have a black President is pure idiocy; Obama's election has just stirred up the hatred out there. You seriously think that Dumbfuckistan is a more enlightened nation than most countries in Europe? GTFO!

@60: So Hitler's reign of terror makes Europe barbaric and inferior. Nice to know you don't have two brain cells to rub together.
And considering the bloodiness of the American Civil War (which was WITHIN a single nation), you really have no business condemning Europe as a whole for the wars that a few have fought BETWEEN DIFFERENT COUNTRIES.
62
@61 I imagine the troll is slowly humping a flagstaff as he writes his comments.
63
61

...the wars that a few have fought .....

you do know 68 MILLION Europeans died in war between 1914 and 1945,
don't you?
64
62
you spend a lot of time imagining what the troll is doing, don't you darling
65
61

New York Times:
(French blacks look to America for inspiration and hope)

"Having always thought it was more racially enlightened than strife-torn America, France finds itself facing the prospect that it has actually fallen behind on that score."

"A new black consciousness is emerging in France, lately hastened by, of all things, the presumptive Democratic nominee for president of the United States. An article in Le Monde a few days ago described how Mr. Obama is “stirring up high hopes” among blacks here. Even seeing the word “noir” (“black”) in a French newspaper was an occasion for surprise until recently."

"Meanwhile, this past weekend, 60 cars were burned and some 50 young people scuffled with police and firemen, injuring several of them, in a poor minority suburb of Vitry-le-François, in the Marne region of northeast France.

Americans, who have debated race relations since the dawn of the Republic, may find it hard to grasp the degree to which race, like religion, remains a taboo topic in France. While Mr. Obama talks about running a campaign transcending race, an increasing number of French blacks are pushing for, in effect, the reverse."

"This black consciousness is reflected not just in daily conversation, but also in a dawning culture of books and music by young French blacks like Youssoupha, a cheerful, toothy 28-year-old, who was sent here from Congo by his parents to get an education at 10, raised by an aunt who worked in a school cafeteria in a poor suburb, and told by guidance counselors that he shouldn’t be too ambitious. Instead, he earned a master’s degree from the Sorbonne.
Then, like many well-educated blacks in this country, he hit a brick wall. “I found myself working in fast-food places with people who had the equivalent of a 15-year-old’s level of education,” he recalled."

"France definitely sends out mixed messages. “Négritude is a concept they just don’t want to hear about,” Youssoupha said"

At the same time, it’s against the rules for the government to conduct official surveys according to race. Consequently, nobody even knows for certain how many black citizens there are. Estimates are 5 million out of a population of 61 million.

(that's 9%, jr. not very different from the 12% in America......)

66
@63: Yes. But you insist that that makes Europe as a whole barbaric and uncivilized. Explain to me how Hitler's war, for example, makes Switzerland a nation of ignorant savages.
Also, this was around the time that Americans were brutally repressing black people still, so don't act like Dumbfuckistan was morally superior back then.

@65: Yes, President Obama is a source of inspiration for persons of African heritage everywhere, in my opinion. But America as a whole (particularly Dumbfuckistan) still has a serious problem with racism.

@64: Mhmm, yes! Rub those stars and stripes all over me! Oh, Betsy Ross! Oh Betsy!
67
It's particularly amusing to see the Neo-orginalists here holding up Obama's election as an example of American superiority over Europe, considering that they didn't vote for Obama, wish to see Obama out of office as soon as possible, and are perplexed by the level of affection for him in Europe (see "Nobel Prize").

Moreover, it wasn't so long ago that they were apoplectic about this statement of the obvious:

"In our first Constitution, my ancestors were three-fifths of a man. What does that say about American democracy at its outset? I've said it's a great birth defect. And we have had to overcome a birth defect. And, like any birth defect, it continues to have an impact on [America]."
--Sec. of State Condoleeza Rice, 2008

68
@ 67 - To be fair, even Obama seems perplexed by being awarded the Nobel Prize.