I wrote a Constitution this week, as a sort of exercise. When I proposed a similar exercise for wider publication to Niskanen’s Samuel Hammond two years back, he thought it had dubious value, referring to it, correctly, as a kind of political science LARPing. Constitutions do not spring fully formed from the heads of Constitution nerds. They emerge from a negotiation among the interests of society and are formed by what drafters believe will be possible to sell to the mass electorate. They are not pristinely designed from first philosophical principles.
Still, if you wish to better understand how these systems actually work, it’s clarifying to try and sketch the bare bones of one out. I had developed a perspective on many aspects of the design of political institutions, but getting it all down in one place draws out both how interconnected all the aspects are with one another, and how underspecified the entire system always is. Conservative constitutionalists are always caterwauling about how the 20th century federal administrative state is unconstitutional, but there’s absolutely nothing in the text of the document that says so. The structure of our current government wasn’t even imagined by the authors of our highest law, never mind precluded by them. Where these constitutionalists are not simply encouraging a conservative Supreme Court to flex its institutional muscle in ways they like, they are filling in the blanks with ideology.
The typical contemporary Constitution makes what we might think of as the opposite mistake, attempting to put all the details of the system into the initial document, ballooning them to the length of small novels with far less compelling prose than that suggests. At the end of the days these words have no real power over the people on the ground whose daily actions will shape the character of the system. It is my belief that a brief document that draws the essential outlines of the form of government is more valuable as an instrument for cooperating in the implementation of the new government. Even if you specify, as I do in mine, that the system is to be a mixed proportional representation parliamentary system on the German model, you leave a great deal of leeway on the particulars and of course enormous leeway on the substance of the law passed by the new legislature.
Top level constitutional design obviously has practical implications, when that design is honored. The framework for allocating electoral votes for president, while allowing flexibility at the state level, has had very obvious practical consequences for the American system. Making the Senate the senior partner in Congress on matters of legislation, treaties, and appointments, has likewise had rather stark practical consequences. And the inability to remove a president except by two-thirds or the Senate, or to amend the Constitution except by an enormous supermajority, have been felt as well. These are the things I have given some thought to in my little exercise.
Ultimately I must agree with Jamelle Bouie’s assessment that our current Constitution does not do “adequate justice to this country’s democratic aspirations much, less liberal republicanism” and that Americans have always had to bend the Constitution to make it “accommodate their democratic impulses.” It is this which drew me to thinking about how it might be otherwise, what a better Constitution might look like, and to draw on what has been learned through institutional experiments that have happened since the 1780s.
But I must disagree with Jamelle’s implication (if I have read him correctly) that there’s little room left “to build a truly democratic political system within the present limits of our constitutional order.” Even with a very strict interpretation of the limitations of federal authority, we could build a much more democratic and much more effective constitutional order. And whether or not we need to stick to that interpretation in the first place is a matter to be determined and contested, never settled once and for all.