Thursday, February 6, 2014

"The Fantasy of a Fresh Constitutional Start"

James Poulos has it exactly right in his article today at The Daily Beast. Calls for a major overhaul of the US Constitution have been coming fast and furious from all sides of the political spectrum (which may in fact be a circle). Hardly any of them consider that they might have to compromise with those who hold opposing (in some cases, diametrically opposed views) to get a new constitution. What Poulos rightly calls "the fantasy of a fresh constitutional start" would make getting a budget through Congress seem like child's play.

As long as many of us already are fantasizing about a new constitution, however, I might as well ask my perennial question: what firm empirical evidence do we have that our barely functional written constitution has provided America with better results than the UK's unwritten constitution, which our founding fathers rejected (although Adams evinced warm feelings toward it)? Are property rights and contracts substantially better protected and enforced here? Has judicial supremacy on constitutional issues really protected rights and freedoms better than parliamentary supremacy? Does the UK's representative democratic system (however dysfunctional it may be) really function significantly less well than that of the US? I don't just want bromides, I want real comparative institutional and organizational analyses.

Even if we could adopt a new constitution, it would probably be much much worse than the almost fatally flawed one we already have. And that's me being optimistic (there's no way we could adopt a new constitution given the institutional and organizational structures to which our existing constitution, along with state constitutions, has given rise).

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