Prologue:
I had already written this first piece before SCOTUS makes its 6-3 ruling in the case of Donald Trump v United States (2024). As I have already written about the material of that case, I shan't cover the ground again. However, as I was well into the second of these, the gravity, gravitas, and graveness of the SCOTUS decision made itself very well known.
I had already long formed the opinion that the US Constitution was bad law and was a case of "play stupid games, win stupid prizes", but especially over the past decade, I have become ever more radicalised in thinking that not only is the US Constitution bad law, but it is repulsive to its opening two clauses.
This then, is my survey of the US Constitution and I can tell you, my opinion of it has not changed much.
Opening Remarks:
One of my favourite taunts which you will hear oft yelled, is "if you think that you can do a better job, then why don't you?". When it comes to designing the Constitution of a nation, my country of the Commonwealth of Australia, did precisely that. It took the Westminster system of government, which it had already cloned six times in the several colonies and then attempted to weld together a conception of federalism, with inspiration from what was then the Dominion of Canada which was our cousin, the Helvetique Confederation (aka Suisse, aka Switzerland, aka The Land of Chocolate), and the big brash federal United States which was less a confederation and more of a federal project. What we ended up with, is sometimes called the "Washminster" system and is in fact, that better job.
The Australian Constitution conventions, looked at the existing Westminster system and kind of melded the United States' solution of how to resolve the upper house and decided that equal representation was the best way forward; which was unlike Canada and the United Kingdom. What we ended up with, over a series of Constitutional Conventions which took ten years, is excellent. It is so excellent that it was looked at when Japan wrote its constitution, and when the European Union wrote its constitution, they both looked to Australia as the template to weld together many sub-entity components into the larger project.
In answer to that taunt "if you think that you can do a better job, then why don't you?", well we already have done; and it's better in every single way. Quad Erat Demonstratum.
However, this explanation does not do much to explain why I think that the United States Constitution is a half-baked, ill-conceived, and ultimately is a Bad Thing. It is so bad that it has been copied exactly zero times and I think actually helped to ferment the conditions which caused the Civil War in 1861. If a constitution is partly at fault for sending the country to war with itself, it can not be good.
So then, I am going to attempt to do something which the Supreme Court of the United States never does and that is, critically explain why I think that the United States Constitution is a Bad Thing. In many ways, this feels like a project from a Comparative Constitution class that I took oh so very long ago, as part of an extension to Corporate Law, and then Constitutional Law.
Let's start at the beginning; which is a very good place to start.
Preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The first thing to note about the Preamble to the United States Constitution is that it contains no operative clauses. There is nothing here to tell you how to enact what follows, or even hold the various bodies and entities which follow, to any kind of standard or account. Of itself this is not a bad thing because you would hope that the rest of the text which follows will do that but at least here, the fact that there are no operative clauses, means that the Preamble is functionally useless.
It does nothing.
Having said that, even if this was the standard by which the rest of the Constitution which follows was held to, great swathes of it would fail. Particularly the phrases "establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty", are frequently spit and kicked into the dirt by the text which follows. It is almost as if this bit was written by someone who was present for the very first lesson of a class, and then said "I'm out" and then checked out, and never ever ever showed up again.
That very first word "we" should be important but even here, the thrust of the nation for individual liberty at the expense of life, happiness, and sanity, means that that opening word may as well also be a lie. Maybe this was also seen as a temporary measure
This sounds almost ridiculous in a nation where individual liberty at the expense of all else is an idol and a god, but every single major project that has ever existed in the history of the world, has been a collective project. The reason for this in principle is obvious. Individuals are in fact small. Even an individual with access to a few individual machines might be able to achieve slightly more but not a lot more. Major projects; which by the way is the basis of the joint-stock company and every single corporation (including the United States), only get done as collective projects. This is due to the fact that power is magnified by magnitudes in the collective.
What is weird is that the United States Constitution by its very existence, tacitly knows this to be true. A constitution is a set of replaceable rules, which define the terms and conditions by which a collective organisation is constituted. The United States, that is the nation which wasn't exactly invented with the enactment of this Constitution is in fact a collective organisation. Specifically it is Corporation Sole; which is similar to the way that the Crown exists in most monarchies, and things like churches operate. Corporation Sole is owned by itself and nominally can not sell shares in its capital. As Corporation Sole, it is entitled to and in fact operates with corporate personhood. This is extremely important for a state as it is able to own property and sue and be sued et cetera.
Even one of the mottos of the United States - E Pluribus Unum - which is loosely translated as "Out of Many: One" is kind of happy to admit that there is a single new nation, but that it is prepared to trample the many to achieve the one.
As we shall see in the text which follows, the several states which together form the United States, are in fact suspicious of the idea of collectivism. This suggests some kind of internal schizophonia at the very heart of all the states and the nation as a whole. It is a schizophonia which the colonies had been telling themselves before the United States was even a thing, as the Declaration of Independence in 1776 (which was 13 years before this document) was mostly not true.
While not directly stated here, the words of Thomas Jefferson who helped write the Declaration of Independence, and later became the 3rd President Of The United States, wrote to lawyer and historian Samuel Kercheval and said:
Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds
itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure. It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead.
- Thomas Jefferson to Samuel Kercheval, 12th Jul 1816
What this Constitution does not tell, is that that this was the fourth attempt at trying to weld the several states into a nation. The Congress of the Confederation (actually the third Congress system) which lasted from 1781 to 1789, really only had the power to raise taxation and command armies. This monstrosity which is mostly Alexander Hamilton's invention, is a confused mess.
Maybe it is fitting that the Premable contains no operative clauses. The rest of the legislation which follows, fails for make good on its claims to form a more perfect Union et cetera, and some of the Amendments actively hinder the common defence, slander and degrade the general Welfare, and destroy any Blessings of Liberty which might have been had. A Preamble which is impotent, heading bad law, is apt.
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