Originalism

Things I Hate About the Constitution

Legal scholars are often accused of claiming that the Constitution fits their political views. Here are several important issues where it doesn't fit mine.

|The Volokh Conspiracy |

In a recent Twitter thread, well-known originalist legal scholar Larry Solum addresses claims that originalists largely endorse the theory primarily because they like its political outcomes. Although Solum himself is more on the left, he recognizes that it is not an accident that originalists are disproportionately libertarian or conservative. Similar charges, of course, are often made against living constitutionalists, who have long been accused of just coming up with ways to constitutionalize their (mostly liberal) political views.

In my view, constitutional theory is unavoidably normative, and no interpretive approach can be justified completely independent of its outcomes. For reasons I outlined here and here, I am skeptical of nonconsequentialist justifications for originalism and my qualified support for the theory is based on instrumental considerations. I also think there is no way to justify living constitutionalism without at least some consideration of consequences. At the same time, I do not believe that judges should simply try to reach the best policy outcome in any given case, or that even the best possible methodology can come close to achieving that result indirectly. And my support for originalism is combined with severe reservations about the effects of following that approach with respect to some parts of the Constitution.

Solum also points out that the impression of congruence between legal theorists' views of the Constitution and their political views is artificially heightened by the fact that most scholars spend far more time writing about areas where they think there is such congruence than areas where they believe the two are at odds. That is true of much of my work, as well. Given limited time and energy, it makes sense to devote more of it to issues where stronger enforcement of the Constitution will make the world a better place than those where it is likely to make things worse. That said, however, here's a list of several areas where I think the Constitution gets important issues badly wrong. By that I mean that we get bad outcomes if we follow what I think is the correct interpretation of the document. I have a much longer list of cases where bad outcomes occur because the courts (and other branches of government) have deviated from the correct interpretation in some way.

1. Nearly Unconstrained Power to Restrict International Trade.

Article I of the Constitution gives Congress nearly unlimited power to impose tariffs and otherwise restrict international trade. Economists across the political spectrum agree that trade barriers are bad for the economy. They are also severe restrictions on liberty. Moreover, we often cannot count on the political system to police itself in this area. International trade is one of the areas where research shows that voter ignorance and "antiforeign bias" are particularly severe, thereby incentivizing politicians to promote protectionism. The protectionism peddled by Donald Trump and Bernie Sanders is just the latest iteration of this longstanding problem. Moreover, public ignorance also helps the government and special-interest groups hide the true extent of the negative impact of protectionism. A well-designed Constitution would at the very least make it far more difficult to enact trade barriers than ours does.

2. Too Much Use of Juries.

Thanks in large part to the Bill of Rights, the US uses juries for a much wider range of cases than virtually any other nation. If the Supreme Court were to fully enforce the original meaning, I think they would have to "incorporate" the Seventh Amendment (which requires the use of juries in most civil cases) against state governments, thereby mandating even more widespread use of juries.

For reasons I summarized in this article, I think such extensive reliance on juries is problematic, at least in cases involving large-scale policy issues and complex scientific evidence. Ignorance and bias on the part of lay jurors can lead to serious errors in such situations.

But my biggest reservation about the jury system arises from the fact that jury service is mandatory, and thereby has become a system of forced labor. I am less convinced than I used to be that the Constitution requires jury service to be mandatory, as opposed to merely permitting it to be so. But even in the latter scenario, the fact that a large-scale system of forced labor is even permitted, still qualifies as a serious injustice. The benefits of jury service, such as they are, can be realized even in a voluntary system.

Another reason to get rid of mandatory jury service is that it is often used to justify other forms of forced labor, such as mandatory voting (an analogy I criticized here) and the restoration of a military draft.

Longtime readers may wonder whether my criticism of the jury system can be reconciled with my qualified support for jury nullification. The answer is that I think juries should be used for a narrower range of cases than at present, and service on them should be voluntary. But in the types of cases where the use of (voluntary) juries is desirable (which includes a wide range of criminal law cases, among others), they should have the power to nullify, at least so long as the scope of criminal law is as egregiously large as is true today.

3. It is too Hard to Remove a Malevolent or Incompetent President.

The Constitution only allows removal of a president before his term is over through the cumbersome impeachment process. That requires a majority vote of the House of Representatives to impeach, and two-thirds of senators to convict. Even then, removal is only permissible if the president has committed a "high crime or misdemeanor" (though many scholars argue that does not necessarily require a violation of criminal law). Given the vast power of the modern presidency and the enormous harm that a malicious or even merely incompetent president can do, I think removal should be easier. The risk of leaving a malign president in office too long is, at least at the margin, greater than that of improperly removing a "good" one. That judgment is reinforced by the reality that few politicians are actually all that good, or all that worthy of being entrusted with vast power. I would not want to allow Congress to remove the president by a simple majority vote, like a parliamentary prime minister. But we would do well to reduce the size of the necessary supermajority in the Senate, and to eliminate the requirement that the president can only be removed for a "high crime or misdemeanor."

Admittedly, this issue would be a less serious problem if the power of the executive branch were cut back to its original, far more limited scope. But that does not appear likely to happen anytime soon.

4. Breaking Up States Should be Easier to Do.

Breaking up big states such as California and Texas could help facilitate beneficial competition and open up new opportunities for people to "vote with their feet." Currently, states can only be divided with the consent of both the state government (which has an obvious incentive to avoid diminution of its own power) and Congress. I am not sure about what the optimal approach is, since it would be a mistake to give the federal government unconstrained power to break up states at will. But dividing up states should be easier than it is now.

5. The Presidency Should not be Reserved to "Natural Born" Citizens.

I explained the reasons for my opposition to this form of discrimination against immigrants here. This provision causes far less tangible harm than the other items on this list. It is nonetheless an egregious example of indefensible discrimination, and its elimination would have considerable moral and symbolic value.

6. The Constitution is too Hard to Amend.

Article V makes our Constitution one of the most difficult to amend in the whole world, possibly even the most difficult. While there are, technically, three different methods of amendment, only one of them has ever been effectively used, and it requires the approval of two-thirds of both houses of Congress, and three-fourths of state legislatures. Since all but one state legislature is bicameral, the three-fourths requirement (which also applies to the other two amendment methods) is even more onerous than it looks. The difficulty of the amendment process exacerbates all the other flaws of the Constitution, by making them almost impossible to remove by legal means. It also incentivizes the political parties to pursue constitutional change by surreptitious methods, such as appointing sympathetic judges. It would be a mistake to make the Constitution too easy to amend, as in the case of some state constitutions that can be amended by a simple majority vote in a referendum. But the federal Constitution errs in the opposite direction.

The above is not an exhaustive list of flaws in the Constitution. It just includes what I think are currently particularly egregious shortcomings. There are others which are comparatively minor, and also some that could potentially cause more trouble in the future than they have so far. For example, the Founders made a mistake in failing to fix the number of Supreme Court justices, thereby opening the door to court-packing. Fortunately, political norms have prevented the parties from exploiting this flaw over the last 150 years. But those norms may well break down in the near future.

There are also some issues that may well be serious problems, but on which I am uncertain in my own mind. For example, I am uncertain about whether we would be better off with a proportional representation system of voting, than the status quo. Finally, I have omitted harmful parts of the Constitution that have been eliminated or superseded by later amendments, such as the Fugitive Slave Clause.

The flaws described here are, I believe, ultimately outweighed by the many virtues of the Constitution (correctly interpreted). But they are significant, nonetheless.

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256 responses to “Things I Hate About the Constitution

  1. “Economists across the political spectrum agree that trade barriers are bad for the economy.”

    However, trade barriers are also a necessary and appropriate negotiating tool and deterrent to those trade barriers enacted by foreign countries against the U.S. Every country in the world is a protectionist country more so than the U.S. The idea of constitutional restrictions on this is laughable.

    1. So what? Every other country also has more onerous restrictions on guns and free speech; we shouldn’t give up our rights because other nations deny their citizens the same.

      And they haven’t worked well as trade barrier deterrents, just as giving up our guns won’t cause Germany to lessen their restrictions. TPP is going ahead without us and part of the Commonwealth is looking at more trade integration (something Trump said he wanted us to have but never acted on) and meanwhile we’re placing barriers in order to force the renegotiation of NAFTA so that we can implement more barriers. Trump hasn’t renegotiated any trade agreement to be more free, just “favorable” to us, which really just means people or groups he wants supporting him.

      1. You’re deeply confused in comparing international trade to free speech and the right to bear arms. Trump has made clear that he supports true free trade, i.e. zero tariffs, subsidies etc on a reciprocal basis. Obviously, that’s a tall order and Trump has to be a touch insane to be not just attempting but promising something as monumental as rectifying the problems with our trade agreements and the related practices of the parties to them. The reality is that “free trade” is a myth, and an aspirational concept at best. Like it or not, nations are akin to large corporations when it comes to international trade, hashing out a business deal between them.

        1. Trump has made no such thing clear. If he actually did believe that, then he would also know that unilaterally dropping our tariffs to zero, regardless of what other countries do, is beneficial in itself. And if you understood basic economics, you’d know that too.

          1. Correct. Bastiat said something like,

            If other countries have rocky coasts, does that mean we should block up our harbors?

        2. How am I confused? You might think that international trade is different because “it’s between nations” but it actually isn’t. It’s between individuals who happen to live in different nations. Imposing barriers on that trade limits our personal freedom.

          I don’t believe that Trump loves free trade. Ever since he was barely relevant nearly half a century ago he’s been complaining about how free trade is a bad deal for Americans. He’s never even stopped saying that, he just encourages people to believe he’s doing this as part of some grand plan. It’s not like we gave Obama a break when he changed his rhetoric from his fairly Marxist pre-campaign days to his milquetoast Democratic President days.

          The difference between nations and corporations is that governments bargain with the property of individuals they are barely beholden to. Corporations bargain with their property or the property of their shareholders. One is exercising their own right of association and private property; the other limits the right of association and the private property rights of unwilling citizens.

          1. Well sure, any tax is a restriction on personal freedom. But the income tax is a far more dire and objectionable restriction than tariffs.

            Economists seem to agree that a reciprocal free trade agreement is better unilaterally zeroing tariffs in the face of protectionism from every other country.

            It’s amusing to me that the U.S. gets harped on for making some mild trade moves when every other country is more protectionist. Why oh Why won’t foreign countries both rich and poor see the light? They can make themselves richer with this one weird trick!

            1. Economists seem to agree that a reciprocal free trade agreement is better unilaterally zeroing tariffs in the face of protectionism from every other country.

              No. Politicians seem to agree on that. Economists roundly reject that idea.

              1. Can you provide a persuasive link on that?

                  1. you didn’t come anywhere close to understanding the question, NTOJ. None of them are saying that lowering tariffs with only certain countries would be bad.

                    1. “None of them are saying that lowering tariffs with only certain countries would be bad.”

                      They say it all the time. Economists say it all the time, because they are in nearly universal agreement that tariffs, including retaliatory tariffs, economically damage the country adopting the tariffs. The evidence is overwhelming that countries that adopt unilateral tariff cuts are better off for it. See here, here… more

                    2. Here, here, more…here. I can’t link every article in history. I’m not trying to shift the burden, but since DMN made a radical claim (“Economists roundly reject that idea”) maybe you can solve the problem by identifying a paper in which an economist voices support for selective tariff reduction.

                  2. That link does not say that unilaterally dropping tariffs is better than a reciprocal agreement.

                    1. NToJ, This link also does not say that economists roundly reject the idea that a reciprocal agreement would be better than unilateral lopsided “free trade” policies. In fact, it only says that two economists think that Canada should have unilateral lopsided “free trade” policy, and says nothing about whether a reciprocal agreement would be better — assuming, hypothetically, that such a thing were achieved.

                      Furthermore, by its own analysis, the paper you linked explicitly acknowledges its dismissal of the distributional effects of its shoddy theory. Therefore, the analysis is wholly irrelevant to the question of what policy is best for the American people.

                    2. “NToJ, This link also does not say that economists roundly reject the idea that a reciprocal agreement would be better than unilateral lopsided “free trade” policies. In fact, it only says that two economists…”

                      If you’re asking me to produce a paper from every economist in history stating why unilateral disarmament is preferable to reciprocal agreements, I’m going to politely decline. But I’d encourage you to go read David Ricardo’s On the Principles of Political Economy and Taxation. Economists talk about it a lot. The answers are all there.

            2. Economists argue that the country that is hurt most by tariffs is the one imposing them. So are we expected to believe that President Trump wants, say, China to lower its trade barriers to help poor Chinese consumers at the expense of protected Chinese firms?

              1. that’s not something there’s anything like agreement on when the tariffs successfully result in the creation of an industry in the country imposing them, although it’s obviously true in the short term.

                It’s just that aside from East Asia, there isn’t a big history of countries pulling it off, so countries get stuck with tariffs jacking up prices and never building up successful domestic industries for their sacrifice

              2. “So are we expected to believe that President Trump wants…”

                I think the argument is that the President does not understand international trade, or wants China to lower its trade barriers so he can claim victory over them for political gain. I doubt the President is particularly concerned with the welfare of Americans, much less Chinese.

                1. Trump, or any other American, might sensibly want China to lower its tariffs to benefit American exporters who want to sell goods in China.

                  You don’t have to be concerned about Chinese consumers, though in fact there is obviously a benefit to them as well.

                  1. “Dumping”, currency manipulation, etc. already help American exporters, if not necessarily American exporters to China. Eliminating those trade barriers may increase American exports to China, but it will decrease American exports to other countries (having lost the benefit of being subsidized in effect by the Chinese). Once again the efficiency gains will accrue mainly to Chinese consumers, and mostly just rearrange the distribution of American exports between different industries. That’s part of Trump error, namely, looking at trade in mainly bilateral terms.

                2. I was being facetious. I was merely drawing out the main implication of the economists arguments for precisely who would benefit most from lower trade barriers. I assume that Trump (like most other politicians) is ignorant and trying to benefit one group (it’s a classic case of client politics: concentrated benefits and diffuse cost).

        3. Trump has made clear that he supports true free trade,

          Is anyone gullible enough to believe this? Or is this just a partisan yahoo advancing a disingenuous argument?

          1. Yes to both questions.

          2. How dumb are you guys? You don’t think, if Trump actually got other countries to agree to “zero tariffs, zero barriers, zero subsidies” as he has repeatedly called for, he would drop tariffs and support a reciprocal deal?

            Of course he would. That would be a win far beyond anyone’s wildest imagination. But that’s not even a serious attainable objective, it’s just a baseline theoretical ideal. The point is to move the dial in that direction.

            1. I’m just thankful my children get to compete economically with Trump fans.

            2. How dumb are you guys? You don’t think, if Trump actually got other countries to agree to “zero tariffs, zero barriers, zero subsidies” as he has repeatedly called for, he would drop tariffs and support a reciprocal deal?

              No, I don’t think so. Because Trump fundamentally misunderstands the concept of trade, in the sense that he thinks it’s a zero sum game. Well, in the sense that he thinks it’s a zero sum game and in that he thinks that the trade deficit is the scoring rule for this game. Well, in the sense that he thinks it’s a zero sum game and in that he thinks that the trade deficit is the scoring rule for this game and that he thinks that bilateral trade deficits are the scoring rules for the game.

              Well, that and that he only looks at the trade in goods and not services.

              There’s no reason whatsoever to think that a mutual reduction in tariffs would lead to trade surpluses with each of our trading partners, and so Trump would not be happy with the state of affairs.

            3. Hell no. Trump’s knowledge of international commerce is worse than nonexistent: it’s flawed. Looking at trade from the lens of manufacturing because that Trump cares about, here are two factors that indicate problems with true free trade from his mindset:

              #1. Lower wages and unstable monetary policies overseas will generally lead to non-industrialized nations cornering manufacturing.

              #2. Consumer trends indicate America will still have the short end of the stick. People generally want to purchase their own country’s products. Of industrialized countries, the US is really unique because the majority of our people don’t care about location as much as price we do about features. Asians will purchase Asian goods. Americans will purchase anything.

              Everything I listed indicates that there will still be a trade imbalance in a “zero tariffs, zero barriers, zero subsidies” world. Because Trump only sees trade as a zero-sum game, he believes that America has to have an absolute win as opposed to a relative win. (For a decent summary of what I mean, watch this clip from A Beautiful Mind. Trump would be constantly pushing for the first scenario and disregard the second.) Given his ego and his intellect, he will conclude that other countries are taking advantage of the United States and institute new tariffs that, in turn, will result in reciprocal action.

    2. However, trade barriers are also a necessary and appropriate negotiating tool and deterrent to those trade barriers enacted by foreign countries against the U.S.

      False. Trade barriers are not enacted by other governments “against the U.S.”; they are enacted against their own citizens. The proper response to another country having tariffs on American products is to lower tariffs on theirs.

      As the economist Joan Robinson noted, telling a foreign country, “If you throw rocks into your harbors, then we’re going to throw rocks into ours” is just stupid.

    3. “Every country in the world is a protectionist country more so than the U.S.”

      Why do you think we’re richer? The things China has to do to itself to protect their domestic steel industry are self-destructive in the long-term, even with American capitulation.

      1. “Why do you think we’re richer? ”

        Except for Pearl Harbor, we didn’t get destroyed during WWII? And until relatively recently, we didn’t have a highly regulated economy?

        That’s why software became such a huge, vibrant part of our economy, while hardware just trudged along: Why we have Facebook, and no flying cars: IT wasn’t heavily regulated, so all the suppressed entrepreneurial energy went into it, and only had to find customers to succeed, instead of having to get permission from existing entrenched stakeholders.

        1. The United States had a higher GDP than the European countries prior to WW2. It would have been significantly higher had Congress not adopted Smoot-Hawley in 1930 against the better judgment of American economists, plunging the GDP to right around the UK’s. But the resulting free trade era after American hegemony just proves the point of how utterly beneficial free trade is. The GDP growth of postwar Europe and Asia was remarkable and possible only because the US enforced freer trade throughout the world.

  2. Somehow I don’t see a single actual flaw in the Constitution in this list. Your complaints sound like you want civil war and factional violence.

    Trade is a tool of international policy, no different than armies. Eliminating the ability to punish opposition nations lightly, though “soft power” means that the only remaining tool is “hard power” – death and destruction. Not to mention the other, negative, side effects: For example, unrestricted trade with the USSR would have been disastrous.

    Juries? Your argument comes down to entirely technocracy – yet “experts” (especially government ones) turn out to be wrong a LOT. Juries are used to both bring the common understanding into the judgement and to make sure that the common folk felt they had a say. You think removing that would have good effects? I can hear BLM laughing already.
    Also – Japan’s legal system didn’t use juries until just recently. Instead, judges (employed by the Justice Ministry) listened to arguments from prosecutors (employed by the Justice Ministry) to make decisions, and had those decisions reviewed by Justice Ministry officials (employed by the Justice Ministry). Judges were all former prosecutors, and senior Ministry officials were former judges.
    The result? An absurdly high conviction rate – one year, it exceeded 99.9%. You think that’s “justice”? Do you think Americans will accept that “justice” from unelected bureaucrats?

    1. Easy impeachment? Tell me, what’s an “incompetent or malevolent” President? FDR extended the Great Depression with his policies, and broke political norms all over the place. Should he have been impeached? Lincoln was certainly malevolent… from the South’s perspective. Should it have been easy to impeach him?
      Impeachment was made difficult BECAUSE it shouldn’t be used lightly. Only when there is overwhelming agreement should it be exercised – just like expelling someone from Congress.
      Easy impeachment just means abuse by Congress. You don’t even need to speculate; just read today’s campaign literature.

      Breaking up states isn’t a problem you can describe, and you can’t think of a way you’d change it. Right then.

      Foreign citizens as President? The rule was put into the Constitution to prevent a popular foreigner from ruining the US. It almost happened in the Founder’s day – and they chose instead to limit the Presidency to those that are most likely to have the US’s interests in mind. Since, you know, that’s the job.

      Amending the Constitution is simple! Just get enough popular support to enforce new basic rules on the entire nation, and you’re good to go. You just complain because your ideas aren’t popular enough.
      Thank God.

      1. Foreign citizens as President? The rule was put into the Constitution to prevent a popular foreigner from ruining the US. It almost happened in the Founder’s day – and they chose instead to limit the Presidency to those that are most likely to have the US’s interests in mind. Since, you know, that’s the job.

        I think he meant naturalized citizens. As most naturalized citizens care more about this country and its ideals I would love to see that loosened up.

        (and considering our current President has absolutely no idea what America is or what it stands for and only has its own interests in mind – the sooner the better).

        1. Regexp “(and considering our current President has absolutely no idea what America is or what it stands for and only has its own interests in mind – the sooner the better).”

          FYI – our current president is Trump –

          Not Obama –
          the president of the 57 states, the president that thought it was a good idea to the Iranians $1b to enhance their nuclear program.
          the president that thought it was okay to allow HRC to expose her confidential communications to the world
          The president that thought it was okay to engage the FBI to spy on HRC’ opponents policital campaign

          1. Joe_dallas’s accusations simply prove regexp’s point. You can’t even trust natural born citizens.

    2. What is the conviction rate in the US if we count guilty pleas as convictions? That is, what percentage of the time does someone arrested and charged with a crime end up acquitted by a jury.

      My guess is that it’s more than 0.1%, but still pretty damn low.

      1. Yeah, plea bargains are pretty gross. In the Federal system, it seems only about 2% of accused actually go to trial. States average 4-5%.

        1. This tells us the conviction rate in federal courts were 93% in 2012. That puts federal defendants in the US right up there with Japan.

          It is somewhat lower in state courts, but still well above 50%, so you are talking numbers in the 98-99% range.

          1. 93% and 99.9% are two orders of magnitude different on the acquittal rate – that’s not even close.

            1. You are ignoring the plea bargains.

              You are also looking at acquittal rates to make it sound like we are much better on this.

              But if we have 10000 defendants charged with a federal crime, 9800 plead guilty, and 93% of the rest – 186 more – are convicted at trial. That’s 99.86%.

          2. What should the conviction rate be? I’d say it should be at least 95% ideally. Prosecutors should’nt bring a charge unless they are about 95% certain of a conviction. Just looking at the conviction rate without looking at the decline to prosecute rate is meaningless, and we know the decline to prosecute rate is pretty high.

            1. That’s a worthwhile point.

            2. “Prosecutors should’nt bring a charge unless they are about 95% certain of a conviction.”

              Of course that doesn’t distinguish between:

              The prosecutor is 95% certain of a conviction because he has a strong case.

              And

              The prosecutor has a weak case, but is willing to do anything, including cheat to win.

              1. @MS
                And that’s the problem in Japan, where prosecutors, judges, and the ‘oversight’ are all in the same career path.

                One scandal some years back was that a defense attorney discovered that a half-dozen people had already been convicted of the exact crime his client was accused of! The prosecutors *knew*, but were charging anyway.

                Replacing juries with more professionals as Somin suggests is just begging to duplicate those circumstances.

    3. Japan’s legal system in general is different from ours, largely due to culture. They achieve high rates because the general rate of crime is lower, the reporting rate is lower, and there is no plea bargaining. They drop cases they aren’t sure about, partially because they are ridiculously understaffed, whereas in the US we prosecute and then screw plea bargains out of people.

      1. One big problem with Japan’s legal system is that they are fairly gungho about giving the death penalty. They give them out mostly for murderers but they have similar capital punishment rates as the US, which is kinda crazy considering the US has more murders.

        Also, it’s done by hanging.

        1. “They give them out mostly for murderers but they have similar capital punishment rates as the US, which is kinda crazy considering the US has more murders.”

          Japan has the capital punishment rate the citizenry want. The US has the capital punishment rate the judiciary want. If the judiciary were not warring against capital punishment, and on the verge of outlawing it entirely by fiat, our capital punishment rate would likely exceed Japan’s.

        2. FWIW, I would voluntarily chose even a mildly competent hangman over the various States’ hodgepodge of pseudo-medical execution.

          [ Not ardently anti-DP, and I don’t like the ‘attack the method’ line, but the method is pretty garbage. ]

      2. Crime rate, reporting rate, or plea bargaining have nothing to do with conviction rate. Conviction rate is of those cases that go to trial.

        Understaffing may make a difference, true. The police try to only make arrests when they are already sure they had a perfect case… which is why only 30% of cases result in an arrest. But when there is an arrest, there is a conviction.

        The Ministry’s punishment of judges that acquit the accused is well-documented.
        Any judge knows that if he acquits an accused, unless there in undeniable evidence that the accused could NOT be the criminal, he will basically end his career. He also knows that he is likely to end the career of the prosecutor – failure to get a conviction is looked upon very badly.

        Read some of the stuff reported by former prosecutor Ichikawa Hiroshi – it’s disturbing.

        1. Crime rate, reporting rate, or plea bargaining have nothing to do with conviction rate. Conviction rate is of those cases that go to trial.

          Well, sort of, but we are trying to do a comparison here, and Japan apparently has no plea bargaining, while we have tons of it, so comparing outcomes of criminal cases between the two countries requires taking plea bargains in the US into account.

        2. Conviction rate is of those cases that go to trial.

          Conviction rate can refer to a lot of different statistics, and can be measured many different ways. In the US Attorneys report that was the basis for the 93% conviction rate for federal courts, the denominator was pretty clearly all criminal cases filed, including those settled by a guilty plea.

          1. As far as I can tell, Federal courts have a conviction rate of 90%-ish, with 93% being a recent year.

            However, those same courts have a 97.5% plea rate. For the same years. If about 1.5% of people ask for a jury trial, and another 1% asks for a bench trial, and the remaining 97.5% please guilty to something… that can’t result in a conviction rate of 93%.

            1. that can’t result in a conviction rate of 93%.

              It can if the denominator also includes the 6% or so of cases where charges are dropped, as is the case in the US Attorney’s report I was referring to.

      3. “They achieve high rates because the general rate of crime is lower, the reporting rate is lower, and there is no plea bargaining. ”

        Also because they have coerced confessions.

        1. In Japan you can be held for some ridiculous amount of time – several weeks IIRC – before being allowed to see a lawyer. I have little faith in the honesty of those in power, even those in Japan.

    4. Trade is a tool of international policy, no different than armies.

      Trade is very very very different than armies. It’s not the business of governments at all; people trade, rather than countries. Trade is mutually beneficial arrangement; armies are not. Trade is voluntary cooperation between people; armies are about force.

      1. Would you have accepted it if I’d said “Trade policies are a tool…”?

        Because we’re talking about tariffs here, not individuals.

        1. Not really, because tariffs as considered and authorized by the US constitution were not a tool for “trade policy” they were a means of raising revenue. Tariffs were the only direct source of revenue the US federal government had prior to the constitutional amendment passed to authorize the federal income tax.

          1. Sure, it’s Wikipedia, but here’s a page on the Tariff Act of 1789, that established those initial tariffs.

            There were explicit policy considerations in setting the tariffs, both domestic and international.

            1. Raising revenue is a policy consideration.

  3. Currently, states can only be divided with the consent of both the state government (which has an obvious incentive to avoid diminution of its own power) and Congress.

    I don’t think the incentives run completely this way. The “state government” is not a being in and of itself, but an organization run by people who, of course, are often interested in protecting their power. But they are also interested in increasing it and reaching higher offices.

    Break a state in two and you have two Governors, two Lt. Governors, two AG’s, instead of one of each. You have four Senators rather than two. You get more State Supreme Court justices, more legislators, etc.

    I think lots of politicians would find the additional opportunities attractive.

    1. The problem is that states that have separatist movements have them almost exclusively because state politics are dominated by a group that doesn’t represent the people in the movement. None of the politicians in power will gain anything because they wouldn’t be the people elected in the new state.

      If you split California into liberal and conservative states the Democrats who currently control state politics gain nothing and lose some power. Democrats from conservative areas who managed to barely beat out Republicans with the help of their state party probably won’t be reelected.

      1. I’d be concerned about the splitting of states to advance party interests. I can all too easily imagine a party that controlled both houses of Congress and the Presidency conniving at the breakup of a large state full of sympathetic voters?read California if the D’s are in control, Texas if it’s the R’s. The new state lines would be gerrymandered to create lots of safe Senate seats for the ruling party, with as many as possible of the opposition party’s voters crammed into a few sacrifice states, just as so many House districts are currently drawn.

        This would tend to make the Senate more like the House. In seats dominated by one party or the other, the races tend to be won in the primaries; and this means giving greater power to the most rabid and uncompromising voters in the dominant party.

      2. Nearly any reasonable partition of CA would create 2 blue States and 1 red one.

        And in some sense, the democrats gain something by being able govern even more left than they current are constrained to do.

        1. For CA, the big questions are economic.
          1) who controls the water? 2) who controls the water? 3) Is the red state economically viable if it does not control the water.?

    2. I think lots of politicians would find the additional opportunities attractive.

      Which is why, of course, it’s always the state governments arguing to break up states and the state citizenry who are balking at these efforts.

      Oh, wait. No. Every time there’s been talk about breaking up any state in recent memory the state government has been balking and quashing the arguments of it’s citizenry.

      1. “Oh, wait. No. Every time there’s been talk about breaking up any state in recent memory the state government has been balking and quashing the arguments of it’s citizenry.”

        Of course. This is what you would always expect from wildly unpopular movements.

  4. The risk of leaving a malign president in office too long is, at least a the margin, greater than that of improperly removing a “good” one.

    No longer part of the “I’d rather 1000 guilty men go free than an innocent man go to jail” crowd, I see.

    1. Removing an elected official from office for poor/imprudent reasons is nowhere near being equivalent to convicting an innocent person of a crime.

    2. Since when does a politician have a right to a job/power?

  5. These don’t seem like problems to me. While I agree with originalism, I would acknowledge these places where I think it produces bad outcomes –

    (a) Originalism justifies Missouri v. Holland, giving the federal government the ability to vastly extend its authority under the treaty power.

    (b) Originalism doesn’t justify Myers v. U. S., in other words, originalism, IMHO, would allow Congress to give tenure protections to executive-branch officers, thus empowering the Deep State vis-a-vis a reform-minded President.

    But as for juries:

    “cases involving large-scale policy issues” don’t have a very good record of being handled well by judges, are you saying juries do it worse?

    “complex scientific evidence” can be assessed by court-appointed experts as the rules usually allow, though judges don’t seem to take advantage of this as much as they could. Juries would be more respectful of a court-appointed expert than of a “duel of the hired experts” situation.

    1. The duel of the hired experts is a silly – no, idiotic – way to make decisions. How is a jury of laymen supposed to decide which expert is right and which is a bullshitter?

      Oh. I know. “The demeanor of the witness,” or some nonsense like that.

      1. Battle of the experts does work if the proper research is done. Hired guns can be exposed.

        1. Hired guns aren’t necessarily wrong.

      2. “The duel of the hired experts is a silly – no, idiotic”
        Just right!

      3. You vastly overestimate experts and underestimate juries. I’ve tried over sixty first-chair jury cases, with expert witnesses in almost every one of them, on issues simple and complex. If a lawyer isn’t able to expose an expert who’s bullsh!tting, he’s a lousy lawyer. The alternative ? which you don’t mention ? is having judges make all of these decisions, and it’s a cure that would be far, far worse than the disease.

    2. “originalism, IMHO, would allow Congress to give tenure protections to executive-branch officers,”

      Why?

      “The executive Power shall be vested in a President of the United States of America.”

      Executive power includes supervision and removal.

      Appointment power is specifically dealt with later:

      “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

      Congress can limit appointments but not removal is my conclusion.

  6. Tariffs: Debates on S. Carolina interposition are pretty fascinating. Although it grants Congress the power to impose tariffs, it also textually constrains that power in important ways.

    Juries: Not a fan, but believe they’re useful.

    I disagree with the remainder of the list and believe most of those features are positive features.

    I hate the 16th and 17th Amendments. The 17th re-shaped all 3 branches of the federal government from top to bottom.

  7. The Constitution is too Hard to Amend.

    So…what do you think should be required to amend the constitution? Actually, for everything you have, what is your proposed solution? Instead of saying “It’s wrong”, tell us what you think “it actually should be”.

    1. That’s not how the Socratic Method works.

      Wait, let me rephrase that: Would actually offering solutions be consistent with the Socratic approach?

      1. What does the Socratic Method have to do with it? Is anything in Ilya’s post consistent with the Socratic Method at all?

      2. Socratic method requires dialogue, and the teacher is still asking leading questions to guide the student to a preferred destination.

        Which is pretty irrelevant to this article, as articles are not a suitable medium for the Socratic method.

      3. Nice use of the Socratic method, but I’m an Engineer, not a Philosopher. If someone doesn’t like the way things are done, they propose an alternative. We evalute, iterate, and go from there. Saying “the current way is wrong/bad/whatever” without proposing an alternative doesn’t do anything other than express discontent.

        Now I could say “So what’s Somin’s alternaive solution? Eliminate the consitution entirely and use only law?”

        Which is useless for discussion because Somin hasn’t stated anything beyond discontent and not what we should go to, since I have no idea what he believes should be changed.

        1. Nice use of the Socratic method, but I’m an Engineer, not a Philosopher

          ‘Philosopher’ made me so happy. Some perspective for those us with Terminal Legal Brain.

        2. Just to be clear, I was making kind of a joke about law professors and the fact that some of them claim to use the Socratic Method on their students.

          1. Which is interesting since the real Socrates’ foes were the Sophists, who basically trained citizens in rhetoric so they could make better arguments in citizen assemblies including the Athenian jury-courts.

            So the closest thing to law professors at the time in Athens weren’t fans of Socrates.

            1. Socrates’ friends gave as good as they got, saying the Sophists trained people in “how to make the worse appear the better cause,” through rhetorical exercises in defending shocking or controversial propositions.

              Since Socrates’ friends’ writings were preserved, their version of what the Sophists were like became the dominant version, and “sophistry” was added to our language.

    2. He must mean “too easy to break”. It’s easy to amend, if you have a good idea.

  8. 16th Amendment.
    17th Amendment
    Lack of Secession process in writing
    Lack of clarity on due process, privacy rights, property rights
    No requirement that all laws pass unanimous judicial review.

    1. A lot of black people would have been enslaved far longer if there had been a written secession process.

      There’s no secession. States can lead a revolution, and if they suceed, they secede. But if there was a process, states would at least be threatening it all the time. And possibly doing that.

      1. If they’d let the Southern states secede, they would then have been a foreign nation, which the remaining free states could have had a debate over invading and conquering to suppress slavery. The whole thing could have been done constitutionally, without the damage to the rule of law that the actual Civil war did.

        And it would have been a lot more honest.

        1. Except the act of secession rather renders any debate pro/con a bit one-sided since the pro-secessionist would largely be gone.

          So you’re left with ‘I’m sorry, you didn’t follow proper procedure by allowing succession and then killing them until they took it back. Now the rule of law is broken because it encourages the wrong order or operations in preventing secession via force of arms.’

          This is some formalism beyond reason. Like your thing about textualism below, procedures are vital, but vital as a means to an end. If you follow them for their own sake only, you become a cargo cult.

          1. One of the consequences of the way it was done, for instance, is that the Reconstruction amendments were ratified in a very, very dodgy manner. I’ve seen it argued that the way they were ratified was legitimated by practice, and could be replicated today.

            Yes, it’s true that any argument in the North about the legitimacy of slavery would have been one sided. An argument about the merits of going to war with the South over it? Probably much less so.

            1. But this is the snake eating it’s tail – if we stick to strict formalism, then the deviations do violence to that formalist system by blind precedent. But if we do not, then the deviations aren’t a problem.

              A formalist living in a functionalist world is in for a rough time if he tries to retroactively rationalize the past into a formalist box.

              From what I’ve read, the north was pretty gung-ho about keeping the Union together, slavery or no.

            2. “…is that the Reconstruction amendments were ratified in a very, very dodgy manner.”

              Why? The alternative was that the southern states would continue in perpetuity to be vassal states to the north, as was the north’s right by virtue of its victory. When in human history have a conquered people been treated so well?

          2. Hartford Convention was a secessionist movement in the NE. Arguably 2-3 methods for secession: (1) States amend the Constitution to be null & void, thereby disbanding the union of States; (2) the Constitution did not create a “perpetual union” like the Articles of Confederation, and by the States expressly reserving all powers not delegated/prohibited, they reserved the power to secede–the process for secession should probably track the method for ratification, or the State can decide for itself; (3) a State is denied the right of Senate representation or participation in the electoral college (federal government basically ousting the State from participation under the Constitution).

            If secession was not legal, then the reconstruction amendments were likely ratified through duress, as opposed to the free and voluntary choice of a co-equal member of the union. If secession was legal, then the conditions placed on re-entry into the union (i.e., ratification of reconstruction amendments) were arguably proper.

        2. Not to mention the 600K dead.

      2. That would be a feature, not a flaw. And Congress would be a lot more hesitant to violate the Constitution.

      3. Also, 750,000 Americans, black and white, would have lived if Lincoln didn’t feel he had some God given right to possess and control the South.

        If slavery is evil, what is war?

        1. A one-time cost versus a continuing horrorshow that dehumanizes slaver, slave, and nation alike.

          1. A one time ultimate cost to those 750,000. Who gets to decide whether life or liberty is more important?

            1. Clearly the ringleaders of the rebellion and the slaveholders thought that the cost was worth it when they initiated their rebellion even before Lincoln had a chance to take office.

        2. The state governments in the South certainly used the same sort of violence against their slave population to keep them in line, but we almost never see a similar attack on slaveholders for that unnecessary violence (and instead focus on Tyrant Lincoln). Why is that?

        3. If slavery is evil, what is war?

          Justice, at least sometimes.

          Killing people is not generally a good thing. But killing a rapist in the act is, if there’s no other way to stop the act. And if there’s no other way to stop him, killing a rapist who publicly announces he’s going to keep doing it is a positive good.

        4. Also, 750,000 Americans, black and white, would have lived if Lincoln didn’t feel he had some God given right to possess and control the South.

          Lincoln didn’t start the war.

          Perhaps you meant that those people would have lived if traitorous slaveowners didn’t feel they had some God given right to possess and control slaves.

      4. NO secession at all? Couldn’t a state leave the Union through the reverse of the process by which it entered? Vote of the state’s voters/convention followed by a Congressional enabling Act? It’s one thing to assert that a state can’t UNILATERALLY leave the Union, but to claim it can’t be done at all has to be premised on the notion that some legislative acts can never be repealed. Any basis for believing THAT?

    2. In Federalist #59, Hamilton addresses the possibility that a few states might bring about a dissolution of the Union by refusing to elect members to the House of Representatives. He uses this to justify the Federal government’s power to override state decisions on the time, place, and manner of House elections (Article 1, Section 4 of the Constitution). Toward the end of the paper, he speaks of the breakup of the Union into separate confederacies as an unalloyed evil. This suggests that there’s no orderly procedure for secession because the Founders and the orignial ratifiers were firmly opposed to the idea.

      1. Jefferson offered to allow any State who wanted to secede over his record as President to do so with his blessing. That’s freedom, the opposite of tyranny.

    3. “Lack of clarity” is a feature, not a bug. Framework originalism, long live Jack Balkin!

  9. The census. I would instead have all representatives proxy the number of votes they got in the last election. Yes, it takes longer to tally the vote, but even in the quill pen days, this was not hard, and everybody would be looking for errors when it was close.

    (I would also elect the top three vote getters, each proxying their own votes, and choose one other legislator at random from among all voters who volunteered; this volunteer legislator would proxy all remaining votes, giving an effective “anybody else” vote to shake things up.)

    1. Sounds good to me. I’d probably (for ease of drawing districts) make it so that congressional districts were still only shuffled every ten years, but make it based on the average number of voters over those years rather then the census.

      Also, your parenthetical basically describes a more complicated form of multi-seat districts. I’d have to think about it to see if the added complexity helps or hurts, but I suspect it’s largely a wash.

      1. Instead of 10 year re-alignments, let border parcel owners shift their parcel to a neighboring district, as long as that district had fewer voters last election. You could end up with districts evaporating to nothing, but with proxies, it doesn’t really matter.

    2. I would also elect the top three vote getters, each proxying their own votes, and choose one other legislator at random from among all voters who volunteered

      Do you mean you would have four representatives from each congressional district?

      Leaving the fourth one out of it for the moment, this is an interesting solution to gerrymandering.

      1. I first ran across this proposal in a novel by L. Neil Smith, but the idea is obvious: Treat votes as proxies. (Smith’s system had the proxies revocable in real time.)

        I favor it. Won’t happen without a constitutional convention, though, as it’s absolutely not in the interest of incumbents.

        1. Never heard of L. Neil Smith, maybe I’ll go look him up. I thought about real-time proxies, but that requires publishing votes, in effect, although crypto could ease that; I like secret ballots. Also, it adds a burden on record keeping, and then there’s the question of how quick real-time is. By the second? Then you run into race conditions (no, not the bigot kind!). I give my vote to Senator A, and as soon as he’s voted, I move my vote to Senator B, and as soon as he’s voted, …. You could freeze the proxies as of when the vote starts, but what about people who want to move their vote from Senator X to Senator Z, neither of whom has proxied votes yet. Too much to worry about, let regular elections handle it.

          1. It’s how voting was handled in his “Probability Broach” series. (An alternate universe where the founding fathers were somewhat more libertarian.)

        2. The more I think about it, the better I like it.

          1. It really is the best way to handle proportional representation, being genuinely proportional. It allows a limited number of representatives to much better reflect actual public opinion, than systems where every representative has the same voting strength.

            1. I’m in.

              1. Nice that, with all our disagreements, we can still agree on some things.

            2. “proportional representation”

              The most stable, successful and richest states in history (US and UK) use the first past the post single rep districts.

              Silly to change.

              1. We both speak English, too. Think that was responsible?

  10. West Virginia has been in the news recently with respect to impeachment. Would you favor substituting their reasons for removal?

    “Any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.”

    This would of course add “maladministration, corruption, incompetency, gross immorality, neglect of duty.” Each of those would apparently address concerns associated with the “Imperial” Presidency.

    1. Since “high crimes and misdemeanors” is not defined, it can include “maladministration, corruption, incompetency, gross immorality, neglect of duty” if the House and 2/3 of Senators agree.

      Impeachment is in practice limited only by politics.

      1. Yes and no. It is true that the House/Senate can fit anything into the definition of “high crimes…”

        However, it is also a political process, and it is a whole lot easier to convince people to vote for impeachment/removal for overspending when “maladministration” is one of the enumerated offenses, or for a sexual impropriety when “gross immorality” is specifically listed.

        In West Virginia, a number voted for impeachment solely because “maladministration” was specifically listed as a reason; they stated that if it was solely “high crimes…” they would not have done so.

  11. When I clicked upon this article, i expected to read something that would be an amazing exploration into the idiotic, and I was right. Did the genius who wrote this trash ever consider that if morons didn’t use the living document bs theory that it would be easier to get people on board for amendments? After all, why amend the constitution as instructed when you can amend from the bench!

  12. The Constitution isn’t too hard to amend. Rather, it’s too easy to “change” without amending.

    We no longer see constitutional amendments because Congress originates constitutional amendments, and Congress now gets its way by judicial ‘reinterpretation’, without any risk of the states refusing to ratify.

    This is not a new point: The reason the Constitution isn’t being amended isn’t because it’s too hard, but rather because living constitutionalism is too easy.

    1. What you call “reinterpretation” is the common law system, which was very much intentionally adopted by the framers and reposed in the Article III judicial power.

      And it is genius, because it allows the law to evolve taking into account lived experience.

      1. I think this is a clever argument for court decisions which are based on living constitutionalism. Such an argument allows an appeal to the Founding generation – “sure, they may not have meant to rewrite the Constitution to recognize same-sex marriage, but they created a Supreme Court which they wanted to make creative decisions in the future – thus we can actually go back to the Founding to justify a constitutional right to gay marriage!”

        In reality, they didn’t see the common law as something subject to freakish 180 degree changes.

        The state constitutions in the founding era made provision for the common law, but either subjected it to legislative overruling or codified it to protect it against legislative or judicial meddling, as in the 1776 constitution of New Jersey: “That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.”

        1. And the 7th Amendment to the US Constitution preserved the right to trial by jury in “cases at common law,” which the founding generation saw as a long-term protection of traditional jury rights – there’s no evidence that the term “common law” meant “the latest brain fart of the Supreme Court” – if it were that variable it would provide no protection for those jury rights which the people thought they were protecting in the Bill of Rights.

          1. There is no common law system that doesn’t feature evolution in the caselaw- that’s the entire point in the system (the other major legal structure available in 1787 was Civil Law, where codes set everything and judges had little power to innovate).

            The framers consciously chose that system (which Britain was using).

            1. The framers consciously chose to retain the common law system for limited purposes, but by choosing to have a written constitution, they were rejecting it for constitutional law.

              Not all cases are cases at common law, and constitutional cases never are.

              1. I think you are both right, and both wrong. The Constitution is a rejection of a solely common law system, but the sweeping language in the Constitution (‘the executive power’ ‘reasonable searches and seizures’ ‘the press’ etc. etc.) shows they were not looking at a system of mere textualism (c.f. McCulloch)

                1. Again, the use of “common law” in the 7th Amendment wasn’t meant as an invitation to the Supreme Court to be creative and replace trial by jury with trial by judge, or trial by ordeal.

                  The phrase “common-law judging” or “common-law system” isn’t an incantation to justify the Supreme Court rewriting state marriage laws or creating a right to abortion, or declaring that smoking weed is interstate commerce.

      2. “And it is genius, because it allows the law to evolve taking into account lived experience.”

        No need for a Constitution at all under this view.

        No judge in England could completely invalidate an act of Parliament under the common law.

        1. Incremental change is not necessarily equivalent to the sort of change brought about by amendment.

          1. “Incremental change”

            Like abortion and gay marriage.

            1. Keep whining about gays being treated decently, Bob.

              It promptly alerts people to the worth of your opinions and the nature of your character.

            2. Yeah, our understanding of the right to privacy, the rights of women, and what equality means evolved incrementally over the years.

              Just because you were surprised doesn’t mean everyone was. And as I recall you weren’t even surprised, you were just bitter.

              1. Our understanding certainly evolved, in the context we’re talking about, it evolved to the extent of changing the Constitution in 1920 so that men and women have equal voting rights.

                The problem from the standpoint of guys like yourself is that many women suffered from false consciousness, otherwise a unanimous pressure bloc of woman voters would have forced the adoption of “advanced and evolved policies” like abortion on request.

                And “living constitutionalism” wasn’t necessarily ideal for gay persons either. The Constitution’s guarantees (just to give one example) preclude police brutality and lawless shakedowns, but the cops, manifesting a living-constitutionalist approach, decided that brutality and shakedowns toward gays were OK.

                1. Also the originalist interpretation of gun rights would allow gay people more access to the instruments of self-defense than they are permitted in many of the Democratic cities in which they live. Living constitutionalism decided that gays don’t need to defend themselves with guns – as if there were anti-gay thugs who in some way threatened them!

              2. Totally agree, I think he had one too many acid trips halfway thru stranger in a strange land.

                But I can’t think of better science fiction I’ve read than the puppet masters. Moon is a Harsh Mistress was pretty good too.

                And I enjoyed most of his adolescent space operas, when I was an adolescent.

    2. No, it’s because it is too hard. It only takes 13 states to kill a constitutional amendment. There are approximately 13M people in the smallest (by population) 13 states, and only one of them has a multicameral state legislature. In the bicameral state legislatures, you’d only need approximately half the population of any individual state to kill an amendment (since in most states it has to pass the state’s house and senate). The problem has gotten much worse over time as the gap in population between the largest and smallest states has grown.

      1. Why is that bad? It should be hard to amend the constitution.

        I liked Heinlein’s formulation of a bicameral legislature, one needs 2/3 majority to make laws, the other needs 1/3 minority to repeal them.

        1. Hostility at the practice of passing laws as a proxy for ‘big government’ is not well thought out. Laws are more about change than growth. Blind consistency is not the same as liberty.

          What about annual authorization bills? What about the appropriation bills? What about reining in regulatory agencies and correcting Supreme Court statutory decisions? Who will name our new post offices????

          Love me some early Heinlein partially because of his innocent policy innovations like this; at least they give us a lot to think about. He got too horny and goofy in his old age.

        2. How hard do you think it should be? Because right now, it takes a tiny fraction of the country to kill any constitutional amendment. Do you think it should be 10% of the country? 20%? Do you think 4% is too low or too high?

          1. The other side of the coin is: How easily should a slim majority be able to force its will on the minority? What sort of majority should be able to prevail in changing the basic system? 66%? 60%? 51%? 50.1%? How about a mere plurality? Would you be comfortable with that?

            1. How easily should a minority be able to force its will on a majority. Minorities should have their rights protected, but why their views should prevail on debated issues is a mystery.

              Suppose, to take one example, 60% of the citizenry wanted to remove the “natural-born” requirement from the qualifications for the Presidency. Now, there are some (rather silly, IMO) arguments for retaining it, but if the split is 60-40 for change why should the 40% prevail? Because James Madison?

              1. If 60% of the citizenry want that clause removed, the amendment would be easy. Almost every member of Congress would have a majority in his district favoring the amendment.

                1. Why? What if the people who opposed the amendment are clustered in smaller states?

                2. As NTOJ suggests, you assume supporters are more or less randomly distributed among Congressional districts and states. That’s not necessarily going to be the case.

            2. “How easily should a slim majority be able to force its will on the minority?”

              Well, under the idiotic proposal we live under right now, a slim minority of the voters in the US can amend the Constitution. It’s 3/4ths of the states, not 3/4ths of the people.

              The whole thing is dumb. National referendums would be a smarter way of amending the Constitution. Or do away with bicameral legislatures, at least for purposes of constitutional approval. I’m generally ok with the idea of a supermajority being anywhere between 60% and 80%, depending on how important the issue is. But right now we live under this strange sliding scale where it goes from 40% to 97%. That can’t be the intended result.

      2. Point out the amendment that was actually killed that way. This is a theoretical issue, not a practical one, it hasn’t happened in real life.

        In reality, the killing ground for amendments hasn’t been the states, it’s been Congress: The states didn’t stop ratifying amendments, Congress stopped originating them. The last time Congress sent an amendment to the states was 1978, forty years ago.

        This is consistent with my theory: The obstacle to amending the Constitution isn’t ratification, it’s that Congress no longer bothers with amendments, because the judiciary gives Congress any ‘amendments’ it wants.

        1. Congress stopped proposing them because they are so hard to ratify, and unratified amendments are a loaded weapon.

          1. You’d need to be able to point out more than two amendments rejected by the states to make that case, I think.

            1. I don’t think so.

              If Congress didn’t propose an Amendment because the Amendment was seen as unlikely to be ratified, then it wouldn’t show up on your hypothetical list of rejected Amendments.

              Suppose I asked you how many muggings were stopped because the intended victim was seen to be carrying a gun. Would you count only cases where there was an actual confrontation, and not consider deterrence at all?

              1. If it was that unlikely to be ratified, it shouldn’t be proposed anyway.

                1. You miss my point, Matthew.

                  Brett asks how many Amendments were rejected by the states to measure the difficulty of ratification.

                  But Amendments not introduced because of the difficulty also are an indicator of how hard it is.

                  We’ve had only 27 Amendments altogether, and the first ten are for practical purposes part of the original document. Three more took a war to pass. Some of the rest are purely procedural, and one nullifies an earlier one.

                  That suggests it’s not easy.

          2. “unratified amendments are a loaded weapon”

            Not with a time limit.

            Democrats are satisfied with the de facto amendment procedure by the Courts. Though I expect that worm to turn very soon, since we stole that seat.

        2. The states don’t have to wait for Congress. But the same population imbalance that permits a tiny minority of the population to prevent a 3/4ths ratification by the states, will (to a lesser extent) prevent a 2/3rds convention-call by the states.

          1. Right.

            What makes amending the Constitution so hard is the state-based procedures.

            If we say that an Amendment ought to pass if it has, say, 75% approval, it still might fail, either in Congress or the states.

            1. There hasn’t been an amendment proposed out of Congress in 40 years, and you think the problem is on the ratification end? Riiiight.

  13. I know this is a dislike article, but I wanted to say that my favorite part is the preamble.

  14. “2. Too Much Use of Juries.”

    Rather, too much circumvention of juries. We retain the form of the jury system, but not its substance. Not just the suppression of jury nullification. Voir dire being used to manipulate the composition of the jury. Jurors being treated like the proverbial mushrooms: “Kept in the dark and fed BS.”

    Why can a prosecutor get a grand jury to indict a ham sandwich? Because the grand jury is only there for window dressing, a prosecutor’s sock puppet.

    We need more use of juries, real juries, and fewer laws.

  15. You want a lot more than a simple majority to impose trade restrictions while simultaneously wanting less of a supermajority to remove officers. Why should anyone take you seriously? Removing an officer should only be done for behavior so obviously wrong that a large majority of Congress recognizes the action as being worthy of impeachment.

    1. Why? The rest of us are at-will employees, why not the officers who rule us?

      1. Because Congress didn’t select the President in the first place. Every impeachment of a President represents Congress overriding the voters’ choice.

        1. Exactly. The President is not an “at will” employee of the Congress.

        2. Congress represents the voters and acts for them. But if you want to get formal, let the electoral college be reconvened to remove the president. After all, the president was not chosen in the first place by the voters but by the electors.

          1. Ok, then let the President remove members of Congress.

            After all, the President represents the voters and acts for them.

  16. It is nonetheless an egregious example of indefensible discrimination

    lol

  17. I am very happy that the Constitution is hard to amend – otherwise we would have too many, ‘popular’ amendments that don’t hold up to the test of time.

    1. The 18th Amendment is an example of ‘popular’ amendments that were a failure. Everyone should have know that it would not stand the test of time. People still wanted to drink.

      1. Arguably a commentary on our diversity and liberty. There are lots of more or less successfully dry countries, and even some almost dry states. Most of them are motivated by a dominant religion of one sort or another.

        1. Adults are talking.

      2. And just imagine how things would have turned out if it were even easier to amend? How many half-assed ideas would be implemented, and then either have to be overturned, or ignored? And ignoring a law diminishes society.

        1. State constitutions get amended easily via simple majority vote, and are regularly clogged with amendments hundreds of pages long. I’ve no interest in seeing that at the federal level.

          A constitution is supposed to define not laws but how, and what kind of, laws can be made. As such, it represents the fundsmental power relstionship between people and government.

          It should have buy in from most people, not a simple majority. History shows power abuse is too easy, and the easier demagogues can increase their power, the faster freedom is lost.

    2. Exactly.

      But we have lots of test cases in the States (such as CA) to make for an in-depth analysis , preferably by a spectrum of political scientists and historians.

  18. Having so many juries is a two edged sword, on one side you get verdicts like the Roundup case, in others I’d be uncomfortable having the sensibilities of one judge drawn at random deciding what’s what.

    1. A judge can step in a ‘check’ the jury’s incorrect verdict. That verdict is not based on scientific fact. Overturn the jury’s decision.

    2. I’d rather have a panel of judges making the decisions.

      1. Europe has that. Fuck that.

        Amanda Knox had that.

        Juries will do what a panel of judges wont. Acquit someone who is not guilty based on leanings toward Liberty. Judges lean toward the state.

        Its why appeal reversals are so rare compared to all the cases affirmed.

        1. Are you advocating that we abandon the rule of law? Jury nullification does that.

  19. Bad outcomes from 17A, 24A, 26A. All should be repealed.

    1. Add the 19th to that.

      1. Abigail Adams: “Remember the ladies.”

        24A & 26A are most directly related to my “Get off my lawn!” philosophy.

  20. “In my view, constitutional theory is unavoidably normative, and no interpretive approach can be justified completely independent of its outcomes.”

    I have a really severe problem with this. I’m not sure whether with the actual view, or the way it has been formulated. As written, it seems to endorse the original sin of living constitutionalism: Usurping the right to decide what the Constitution shall mean.

    We have a formal process for changing the meaning of the Constitution, described in Article V: Either Congress or a Convention originates amendments, and then they are ratified, by state, either by state legislatures or conventions of the people.

    Under this system, the power to determine what the Constitution shall mean has been assigned to Congress and the states. NOT the judiciary!

    As it is not the judiciary which is entitled to assign and change the meaning of the Constitution, but instead this is the right of those who are empowered to amend it, the process of interpretation should be as free of normative considerations as humanly possible. Judges should aspire to be totally mechanical about it, and keep their own preferences out of the process.

    To be continued:

    1. Sometimes the Constitution will mean things a judge does not like. Of course it will: The judge didn’t write it! Somebody else did, and they might have different views about the good.

      When this happens, the judge must either apply a meaning he doesn’t like, recuse himself, or resign his position. In extreme cases, he might even take up arms against the government. But what he must never do is lie about the meaning, just because he doesn’t like it.

      Determining what meaning a text shall have is only a normative process for somebody who is entitled to decide what meaning that text should have. Judges are not so entitled. Only the originators and ratifiers of the text are so entitled.

      The very purpose of language, Ilya, is to transmit meaning FROM one person, TO another. The person speaking or writing makes decisions about what the language should mean, and chooses their words accordingly.

      The listener/reader is confronted with words that already embody a meaning, and their job, if language is to work, is to discover that meaning. Not to select a meaning, that’s already been done. To find it.

      Having done that, they may discover that the meaning is not to their liking. It is at this point that the normative decisions begin. What they do about that meaning is their decision. Somebody ELSE has already decided what the meaning will be.

      1. Suppose you’re a bank teller: You see before you two accounts: The account of a poor person, who has a pittance, and maybe an overdraft. And the account of a wealthy person. Normatively, should you take money from the account of the wealthy person, and use it to cover the overdraft? No, of course not, it isn’t your money. Do works of charity with your own money, not the money other people have entrusted to you to manage honestly.

        Bottom line, Ilya? It isn’t your Constitution.

        1. Brett, as a person who had a bigger brain than you do and who thought a lot deeper about these issues said, law is not a brooding omnipresence in the sky.

          You want to tell a story about a text with clear meaning and courts that make it up, but that is a misunderstanding born from your total ignorance of my job and the jobs of judges.

          Where there is clear meaning nobody ignores it. We aren’t inaugurating any 28 year old Presidents.

          But most of the debated parts of the Constitution are really broad vague terms like unreasonable searches and due process and well regulated militias. There is no fixed definitive meaning- at best there are better and worse interpretations.

          The mistake ignorant people make is assuming we all miss this. Believe me, we very much know about the dumb arguments about textualism. We don’t use them in non-obvious cases because they don’t work, and the common law system based on precedent and experience does.

          1. “Where there is clear meaning nobody ignores it.”

            Where they want to ignore it, they declare it unclear. Living constitutionalist always whip out these clauses where the Constitution actually does demand judgement calls, but the real contraversy is over things that are very clear, like the constitutionality of the death penalty, or regulation of intra-state commerce under the interstate commerce clause.

            The basic problem here is that, once you view ambiguity as empowering you to substitute your own preferences for the authors of a constitution, you see ambiguity everywhere.

            1. You’re not going to get rid of subjectivity in the law, Brett.

              Insisting on rigid protocols that nominally ignore results, function, intent, etc. will replace subjectivity with stupidity in some places, and just hide it in others.

              We don’t want judge-robots, and there’s a reason for that.

            2. Ambiguity is ambiguity.

              You, Brett Bellmore, are entitled to your interpretations, but to claim that your opinion as to the meaning of an ambiguous clause is correct, absolutely, and everyone else is just making shit up, is nonsense. Or madness.

          2. “bigger brain than you do”

            Holmes was a eugenist. Some “big brain”

            1. Easy there, big fella.
              He’s easily one of the 10 greatest legal minds in US History.

          3. “Where there is clear meaning nobody ignores it.”

            You can’t be that naive.

            1. Surely you can’t be referring to the Power to Tax Clause. Or the Commerce Clause. Or the Naturalization Clause. Or the Necessary and Proper Clause. Or the First Amendment. Or the Second Amendment. Or the 10th Amendment or……..

          4. Hey, “bigger brain”, you clearly can’t tell the difference between “meaning” and “construction/application”

      2. There is a better way of looking at this. Given that the Constitution is based in natural rights and federalist structure, if your interpretation works against either or both of these, you might actually be interpreting something badly. That is different from knowing exactly what it means and going against it because of the results you don’t like. It depends on how you look at the result, be it one based on principle or one based on childishness.

      3. The Constitution is mean to be a document of the “how” as formulated by the Sovereign. Its changing should be that as well. The present system is as close to that as is reasonable in a Federal system.
        The judiciary is not and is not meant to represent the Sovereign.

  21. 1. Nearly Unconstrained Power to Restrict International Trade.
    2. Too Much Use of Juries.
    3. It is too Hard to Remove a Malevolent or Incompetent President.
    4. Breaking Up States Should be Easier to Do.
    5. The Presidency Should not be Reserved to “Natural Born” Citizens.
    6. The Constitution is too Hard to Amend.

    1. The President is the CEO of the United States. He/She makes the deals and then the Senate either approves them or not.
    2. Juries are a great check to government power. If people took their jury service seriously, more prosecutions would be nullified.
    3. Impeachment is too hard? No its not. Its politically hard because voters get a say by voting out bad Congressmen.
    4. States can easily leave the Union. Its a bad choice, which is why states wont do it.
    5. Keeping non-Americans from becoming president is a great check to people who have split loyalties.
    6. State Constitutions tend to be easier to amend and Socialists get to destroy a state because they can amend too easily.

    This seems like a lot of TDS and wrecking what it means to be the United States of America. Having states split off is a short term fix to our problems and weakens the USA against large tyrannical states like China and Russia. The Lefties use any excuse to destroy the USA as we are the biggest enemy to tyranny the World has ever witnessed.

    1. 1. The article was about trade barriers, not trade agreements. Ilya specifically mentioned tariffs. Under our statutory framework, the President can impose them at his will and it requires Congress to override him. If our Congress wanted, it could remove authority to impose tariffs entirely.

      2. I’m sure you’re aware that you are advocating against the rule of law.

      4. No, they can’t. It requires either a constitutional amendment to create the process of leaving or a civil war to force the separation.

      5. Anyone can have split loyalties. Why do you have to single out individuals with a different nationality? Why not prohibit 2nd, 3rd generation Americans from becoming President? Why not keep Catholics out of office? Why not keep wealthy businessmen from office? Why not keep non-property owners from office?

      6. State constitutions often require a simple majority. Ilya didn’t advocate making that be the standard. He simply wants to decrease the supermajority from 66% of both houses of Congress and 75% of the states.

      1. Since you dont know what you are talking about with item #4, I didnt read the rest of your nonsense.

        The Constitution does not prohibit states from leaving the Union. NY, Virginia, and Rhode Island ratified the Constitution but explicitly conditioned that upon the right to secede.

        1. New York and Rhode Island dropped that notion when they assented to the Constitution. Only Virginia actually made that claim. This issue came up before and after the Civil War. In fact, the Chief Justice of the United States wrote the majority opinion in Texas v. White which held unilateral secession to be unconstitutional.

          Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.

  22. “Things I Hate About the Constitution” says more about Somin than the Constitution.

    1. Your reflexive ‘you can’t criticize the Constitution’ says a lot more about you than it does about Prof. Somin.

      1. “[Y]ou can’t criticize the Constitution” . . .who said that?

        Seems to be yet another post that says more about its author than anything else.

        1. You think a post called ‘Things I Hate about the Constitution’ is proof there’s something bad about the author, don’t you?

    2. It is always great fun to observe that the Conspirator who most aggravates goobers is the one libertarian of the bunch.

  23. I don’t mind how the Constitution is structured.

    It’s basically a user’s manual and many of the problems we face are caused by the users (either through their commission or omission)–not the manual.

  24. Hard to answer a question like that given we have not faithfully followed the Constitution in many decades.
    I would have said e.g. that I hate that the Constitution protects juridictions who want segregated schools.
    I guess I’m not a huge fan of the apparent breadth of the 2nd amendment, but even if we somehow repealed the thing today, I’m not sure it would make much difference.
    I also wish drawing logical, compact congressional districts could somehow be required.

  25. What I hate about the Constitution?too much per-state voting built in. By that I mean that it might be good to have just the right amount of per-state voting, and it could be that’s how things started out.

    Unfortunately, disproportions among state populations have become ever-greater over time, and those disproportions promise to increase further. That change has caused substantive reductions in the effectiveness of constitutional intent with regard to all the provisions which depend on per-state voting. It has also increased the incentive to game the advantages and disadvantages created as state power valences change.

    None of that has been good for politics. The disparities are now so great they threaten to make minority rule a permanent feature of American politics. Some folks in the structural minority thus created will predictably like that. The others will consider it a crisis. It’s always bad when a majority among the governed conclude with justification that they are being systematically disadvantaged.

    1. I’m not too worried about the per-state voting part.

      We’re slowly becoming more progressive and, again slowly, some red states have become purple with at least one (Virginia) going full blue.

      We don’t see, nor will we ever see, any states going blue ? red.

      1. “We don’t see, nor will we ever see, any states going blue ? red.”

        West Virginia says hi.

        And where was Bill Clinton from? And Al Gore?

        “nor will we ever see” is never applicable to American politics. How soon we forget the”Blue Wall” of Michigan, Penn, and Wisconsin that was going to save Clinton.

      2. I’m with Stephen here.

        Deciding national questions with state-based voting is just foolish. It arbitrarily varies citizens’ political power based on what state they happen to live in.

        1. The writers of the constitution were greatly concerned with big state – little state conflicts, which never really became an issue, or at least was massively overshadowed by free state – slave state issues. At any rate, at this point in time the great compromise seems to be a solution in search of a problem.

        2. Too bad, because we are stuck with it. It will take some fairly extensive amendments to the constitution to get rid of it, or even reduce it significantly.

          1. Yes, we are.

            But that doesn’t mean it’s not a terrible idea.

        3. That is life in the US. It is also what was intended in the document.

          1. True, Don.

            But that doesn’t mean it’s a good idea today.

          2. Don Nico, what is your evidence that the population disparities existing today were foreseen, and therefore intended, in per state voting procedures written into the Constitution. Given Madison’s expressed distaste for the effect of much smaller per-state disparities existing at the time, and his consequent urging to put ratification on the basis of a direct popular vote, what makes you suppose he, or any other founder, intended the situation which exists today?

      3. I’m not too worried about the per-state voting part.

        Really? California and Delaware are two blue states. Consider the likely disposition of their Senate votes on a proposed constitutional amendment to get rid of the electoral college, and decide presidential elections instead on the basis of the national popular vote.

        Or consider California, vs. the 17 smallest near-certain red states (In order of descending population: South Carolina, Alabama, Louisiana, Kentucky, Oklahoma, Utah, Arkansas, Mississippi, Kansas, Nebraska, West Virginia, Idaho, Montana, South Dakota, North Dakota, Alaska, Wyoming). Taken together, those states number fewer residents than California, by 3.5 million. Yet in electoral college voting, that minority gets a senatorial contribution 1,700% larger than California’s. The difference in actual electoral college votes is an advantage of 32 for those red states. Over and above their other electoral college votes, that arbitrarily awards Republican voters in those states almost 12% of an entire electoral college majority (note, not 12% on margin, but 12% of all the votes it takes to earn electoral college victory). It amounts to something approaching an electoral college landslide, which Republicans get structurally before vote counting even begins.

        Of course it works the other way too. Delaware gets disproportionate influence compared to Texas, for instance. That doesn’t make it better. It makes it worse.

        1. To put my point above in another way, consider this. Compared to a presumptive even split in electoral college votes, and because of only the structural disparity which per state voting creates in the case of California, Republicans currently begin each presidential election with a structurally created 301 ? 237 advantage in the electoral college.

        2. The Big State vs Small State is just another name for the Urban vs Rural conflict that’s been around for millennia.

          Take a look at Africa or the Middle East, and see how that’s worked out for people… violence and civil war, eventually settling down into power sharing agreements – which fix representation in an unequal manner.

          1. Toranth, not sure I follow this. Seems like I’m being told that power sharing agreements in Africa and the Middle East confirm the wisdom of unequal representation in the U.S. Have I got it?

    2. “disproportions promise to increase further”

      Let the less populated States make it attractive for business to move out of Taxifornia. Things can swing back to an extent.

  26. “The Constitution only allows removal of a president before his term is over through the cumbersome impeachment process.”

    Amendment XXV

    1. Proposed in the year 3231, Ratified in 3342. 🙂

  27. Those juries: Don’t most states have state constitutional provisions like Illinois does which protect a right to a jury in civil cases “as previously enjoyed”? How would eliminating the Seventh Amendment work? No juries at all in federal courts except as authorized by Congress? What about diversity cases being decided under state law? How much would repealing the Seventh Amendment actually reduce the use of juries?

  28. I would comment on all these concerns, but the jury business sticks out. Too many jury trials? On what planet? I keep hearing that something like 95% of federal charges end with a plea – and no jury vote (or more likely no jury at all). And states aren’t much better. When I’ve been called for jury duty, we’ve always been sent home trial-free. This is because prosecuters bully defendents into a plea with extortionate multi-charge threats, and the defendents can’t afford a lawyer who can litigate his/her way ouf of a wet paper bag with a chain-saw.

  29. Of course the filthy, delusional, open borders, communist, Bull Cow hates the Constitution. He seems to hate the things about the Constitution that make it special.

  30. “6. The Constitution is too Hard to Amend”

    That’s a feature, not a bug.

    1. Depends on where you sit, doesn’t it? With minority rule built in as things stand now, a majority is likely to disagree with you.

      1. Sentiments of the majorities change.
        The feature of the Constitution is not to impose minority rule but to impose a long time constant on change.

  31. “Congress shall have power to lay and collect taxes”

    That seems like the biggest problem to me. Don’t institutionalize theft, especially unlimited theft.

    1. …especially when the recipients of the theft get to decide how much to steal…

  32. Wow ,I love it for the five reasons you mention and the 2nd amendment the most of course.
    Maybe that is why it has lasted around 240 years , maybe?

  33. I thought that progressive believe strongly in redistribution of the wealth. Now the wealth is going to those who feed the country.

  34. Prof. Somin, how many jury trials have you been involved in, and how many bench trials?

    I’ve done dozens and dozens of both, in cases large and small, complicated and simple, and I do not at all share your preference for letting judges become the deciders of fact ? including the weighers and resolvers of expert witness credibility. I can give you example after example from my own first-hand experience about juries that got it right, and in most of the examples cited by law professors or other outside observers of the process as juries being unable the make intelligent decisions to sort out testimony from competing experts, I’ve observed the true fault to be with the lawyers doing the cross examination. Particularly post-Daubert ? which did genuinely revolutionize the practice of civil trial law ? your proposed cure would be worse than the supposed disease, which I very much suspect you’ve misdiagnosed for lack of first-hand experience.

  35. I respectfully disagree on some points:

    #3: I think the Presidential impeachment process is only slightly more difficult than it should be. In history, it ultimately got it right every time. It rightfully failed for Andrew Johnson. IMO, there was only one President who deserved impeachment, and that was Nixon, who resigned to avoid impeachment.

    I would like a slight tweak to the process, which I call the “Nixon Amendment”. Extend the grounds of impeachment to include failure to prevent large-scale and serious law-breaking by the Executive branch and any other persons employed by or under the direction of the President. Alternatively, extend the grounds to include a large-scale and serious failure to enforce the law evenly. It took too long to force Nixon out, and had to be done via beginning impeachment for corruption of justice – but that was almost a side issue compared to the real problem: Nixon’s own staff was engaged in serious criminal activity, including money laundering, wiretapping, burglary, and basically trying to steal an election that the Democrats had already lost. What could not be proven was whether at the date the burglars were caught, Nixon was incompetently unaware of these crimes, passively approved them, or ordered them. IMO, any of those was a good reason to remove a President – even if it was only incompetence in enforcing the law.

  36. IMO, the problem with the super-majority requirement in the Senate isn’t that it’s 2/3, but that we have a party composition that the Founders never envisioned. If there were a half-dozen viable parties with several Senators each, then it would be rare for one party to have 34 votes and be able to block anything that all the others agreed on. And as all libertarians know, the two party system also allows other points of view to be ignored. To make it easier for third parties, we need an amendment to
    (1) Require easy ballot access for all parties and independent candidates.

    (2) Require that states with multiple Congressional seats elect the Representatives by proportional voting.

    (3) Require that elections for a single seat (Senators and the slate of Electors) aren’t over until there is a majority, not a plurarity – require either runoffs, or instant-runoff voting.

    #5: AFAIK, the natural born citizen clause has never excluded a candidate more serious than Arnold Schwarzennegger, so it’s actual effect on Presidential nominations has been nil. Changing it would be a tough political fight for an only symbolic effect. OTOH, we need an amendment to define “natural born citizen”, and I’d like that to be a wide definition: Anyone born on US territory or born to one or two American citizens, and who has not chosen to be a citizen of another country. That is, George Romney and Obama should be inarguably natural born citizens by parentage.

  37. Impeach a prez because he has been “incompetent” at insuring his minions are not doing criminal actions (especially when political skullduggery is afoot?) Maybe an ex post facto case for impeachment of Obama for malfeasance in 2016.

    The DOJ was spying on Trump Tower using a FISA warrant obtained on Carter Page without any hearings, supported only by documents. Such include a dossier paid for by the Clinton campaign from a former MI6 guy with virulently anti-president elect views who forwarded it through incestuous Fusion GPS channels to equally ideologically passionate types in-house at the FBI who further modified it.

    Papadopoulos, 24 and the lowest level Trump associate, gets fed dirt on Hillary by a Clinton/FBI consultant, then set up for a boozy chat with the Australian. Total manufactured B.S. for FISA abuse use.

    Rosenstein sits on his pile of heavily redacted documents like they are his personal property. Well, they are. The reveal the “top secrets” of how vastly exceeding the Constitutional outrage of Watergate this Deep State conspiracy to overturn an election result has truly been in every aspect, jot and titlle.

    And poor Papadopoulos? This kid, Carter Page, and Michael Flynn are proof America can appoint and empower our very own Laventrii Beria at the head of a legal lynch mob.

    1. The DOJ was spying on Trump Tower using a FISA warrant obtained on Carter Page without any hearings, supported only by documents.

      Please stop repeating idiot Fox (but I repeat myself) talking points. All warrants are obtained without hearings, supported not by “documents,” but by one document — an affidavit.

  38. Impeach a prez because he has been “incompetent” at insuring his minions are not doing criminal actions (especially when political skullduggery is afoot?) Maybe an ex post facto case for impeachment of Obama for malfeasance in 2016.

    The DOJ was spying on Trump Tower using a FISA warrant obtained on Carter Page without any hearings, supported only by documents. Such include a dossier paid for by the Clinton campaign from a former MI6 guy with virulently anti-president elect views who forwarded it through incestuous Fusion GPS channels to equally ideologically passionate types in-house at the FBI who further modified it.

    Papadopoulos, 24 and the lowest level Trump associate, gets fed dirt on Hillary by a Clinton/FBI consultant, then set up for a boozy chat with the Australian. Total manufactured B.S. for FISA abuse use.

    Rosenstein sits on his pile of heavily redacted documents like they are his personal property. Well, they are. They reveal the “top secrets” of how vastly exceeding the Constitutional outrage of Watergate this Deep State conspiracy to overturn an election result has truly been in every aspect, jot and titlle.

    And poor Papadopoulos? This kid, Carter Page, and Michael Flynn are proof America can appoint and empower our very own Laventrii Beria at the head of a legal lynch mob.

  39. Juries:

    I would argue that juries are not used enough.

    First, a jury is a specialized form of militia, and both should be mandatory, for the same reason. Voluntary service allows for “select” militia, those chosen to support the agendas of those in power. Militia may be compelled to assemble at polling places, but not to vote there.

    Congress has power to “raise” an army, that is, to hire and pay them, not to conscript them.

    The Constitution requires a jury in most civil and in all criminal cases. No exceptions for settlements or plea agreements, both of which should be subject to jury review, as both may be improper.

    Juries are needed in any proceeding in which disablement of rights is an issue, including criminal cases in which disablement of the right to keep and bear arms is an issue. All disablements must be separately and explicitly proved, not “implied”.

    This includes all cases of custody for the incompetent, family law cases, probate cases, and equity cases, all of which are often exercises in abuse of rights.

    Amendments:

    Main need for reform is to remove Congress as the gatekeeper, either to propose amendments or to call conventions. Makes it difficult to restrict their powers.

    Removal of officers:

    Yes, incompetence should be added to “high crimes and misdemeanors”, although it can be treated as a kind of high demeanor.

    See http://www.constitution.org/re….._amend.htm for proposed amendments.

  40. With regard to the amendment process, it ought to be evident that on some questions, like per-state voting, amendment cannot be accomplished by the only Constitutionally prescribed method which has ever been used. It takes only the votes of 34 people in the U.S. Senate to sink any such attempt, and every vote would be from a Senator from a smaller state who had both a state-protective interest, and a personal self-interest, against any such amendment. Even if a proposed amendment could clear that bar, a second line of defense in state legislatures could block it, requiring only the votes of 188 people comprising the majorities in each of the 13 smallest state senates.

    The only way per-state-voting can be changed or eliminated is by direct application of sovereign power, either by a constitutional convention, or by whatever other means the sovereign People could manage. However, even the constitutional convention route would encounter an attempted block, as right wing participants, or their backers, attempted by whatever means to force a per-state voting rule on the convention, and on the ratification process.

    The crisis that portends is simple to describe. Uncountered, it will force permanent minority rule on this nation. With that accomplished and formalized, it will be a short further step to oligarchy or dictatorship. That is nothing other than the political process currently at work in the nation.

  41. The strong view of juries as akin to mandatory militia service falls down a bit when I think of the thousands of hours of my life squandered listening to juries weasel out of sitting on a 4-day DV case. (Most of our arrests that went to trial were DV cases. All the less emotional charges were settled with pleas.)

    My favorite was a guy who came in with a henna tattoo around his neck. “KILL ALL BITCHES’ Playing with fire there, I thought, but the defense lawyer fought to get him on.

    1. jurors for juries in first line, jurors make the excuses why they can’t be on juries. Now if drafted soldiers could do that so easily, I wouldn’t be a Vietnam veteran!

      1. The thing is, all a juror has to do is give an impression of prejudice, and he’s off the panel. Often merely having watched the news is grounds for a challenge. So, aside from a few people who have nothing better to do than sit on a jury for far less than minimum wage, our mandatory jury system selects for idiots in both the Ancient Greek sense (having no interest in or knowledge of public affairs) and the modern sense of “too stupid to talk your way out of it”.

        I’d prefer a system where all criminal cases, as well as civil cases for a significant amount, would go to a jury unless all parties agreed to waive it, and no plea bargaining to avoid proving the case at trial, and where jury pay was high enough that smart and hardworking people would _want_ to take time off work to serve on a jury. Of course, that would require something like 95% fewer cases, which would be a good thing.

        1. In the Seattle area all I have to do is wear my MAGA ballcap to the first cattle call and I will be tossed from the jury pool. They won’t even herd me into an actual courtroom!

          Actually, because I was in law enforcement before retirement and our jury service was always paid time off I ended up several times on jury trials. It may surprise you, but twice I ended up being among the hold out votes for the defendant.

          That was because I well understood that criminals rarely go to trial unless there is something really weak or wrong about a case (O.J. is the exception.) Most guilty folks take the deal. Often I could see where the prosecutors were stretching their evidence.

          My fellow jurors saw me from another angle. They thought I was dragging the case out because (1) I was getting full pay and (2) we were getting a day’s supply of fresh doughnuts every morning.

  42. It’s hard to imagine a lot of states signing up for a constitution that can be amended on a whim but that dissenting states can’t get out of. One of the important requirements to get comfortable agreeing to an eternal compact is that you know what you’re signing up for.

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