Most of the time, American citizens think of the US Constitution as a positive. Even when they are complaining about the way things are, few would heap any of the blame on the Constitution itself. It is common for serious commentators to say that all America really needs is to “get back to the Constitution.”

Many of the nation’s most prominent and respected law professors and constitutional experts don’t agree. Those scholars and experts see very serious flaws in the Constitution. Their views are not seen on television. But in more scholarly outlets like books and academic conferences, the evidence piles up that the Constitution is seriously flawed.

In 1996 America’s constitutional experts were gathered in New Orleans, and someone off-handedly asked what the others considered to be the “stupidest” thing about the Constitution. “Stupid” seems like an odd criterion for serious scholars. But the question came at the end of a long day of serious discussion. The scholars were expressing themselves a bit more freely than usual over their dinners.

There was enough interest in the topic that the professors agreed to ponder the question and then write their conclusions as book chapters. They produced 39 essays, which were brought together in a book called “Constitutional Stupidities, Constitutional Tragedies.” It was published in 1998 by New York University Press.

These writers are lifelong students of the Constitution and of American law. They are not radicals. They all agree on many virtues in the Constitution and of life in America. Probably, they all could recite verbatim any passage of the Constitution you could mention. They knew what they were writing about, and they were not being flippant.

A few of the experts declined to join in the fun. Daniel A. Faber (University of California-Berkeley) wrote, “The interesting question is not whether the Constitution might not have been improved here or there. As with any human document the answer is undoubtedly ‘Yes.’ But the more significant question is whether changes in the text would produce large practical benefits—or to put it another way, whether any parts of the Constitution have produced major social harms. On this score, I am quite skeptical.”

But Faber was in the minority. The others were quick to recognize “major social harms,” and very clear “large practical benefits” that could accrue from “changes in the text.” Here are a few.

 

The Electoral College

Akhil Reed Amar | Yale Law School

Amar explains that the Electoral College was thought necessary because the founders didn’t believe any person (with the rare exception of George Washington) was ever likely to be known throughout the nation. Another reason was the fear that under popular voting states could game the presidential election by adopting odd voting policies in their state, such as letting landless men or even women vote. The electoral college (which gave states voting power proportional to their number of congressional representatives, which was based on total population) was a way of keeping representation under control.

All those are by the wayside now. All citizens over 18 years old are eligible to vote. And there is no shortage of people famous or infamous throughout the nation.

Amar writes that the biggest remaining argument for the Electoral College is inertia – the tendency to just keep doing what we’re already doing. He little knew, when he wrote his essay, how right he was.

He noted that the Electoral College creates the possibility of a winner who wasn’t the popular vote winner – and thus not the choice of “We the People.” When he wrote his essay in 1996, there had not been such a loser/winner since Benjamin Harrison won dirty in 1888. Amar suggested that the possibility of a non-popular vote winner should and would provoke Americans. 

“If our modern national democratic ethos, when focused on the thing, would balk at a byzantine system that defies the people’s choice on election day, true Burkean theory would seem to argue against the electoral college. If We the People would amend the Constitution after the loser president materializes – and I predict we would – why are we now just waiting for the inevitable accident to happen?”

That “inevitable accident” – a president taking office despite losing the popular vote – has happened twice in the past five presidential elections, and nearly happened again in 2020. Amar wrote that only inertia (laziness) kept the nation from fixing the problem before it happened.

 

The difficult process of amending

Mark Tushnet | Harvard Law School

 Tushnet writes “the basic structure of our national government may be unsuitable for contemporary society.” That is close to saying, “The Constitution doesn’t work anymore.”

In American elections, a plurality winner takes control. That’s to say, a candidate who gets less than a majority will still win the office and take 100% of the power. Joe Biden won the 2020 presidential election, receiving more than 81-million votes. That was a true majority of the votes cast, and enough to command 306 electoral votes. It was, we should note, less than 25% of the US population. So Biden still is far short of a majority winner.

In a country where politicians derive their just powers from the consent of the governed, there is strong philosophical argument that a candidate who gets X percent of the popular vote should control X percent of the power. But in America, a fraction, even a fraction less than 50%, can equal 100% of the power.

Anyway, social differences are aggravated when a close election throws all the benefit to one side. But that is just an annoyance. When Tushnet gets down to naming what’s particularly stupid, he says,

“Most of Article I, much of Article II, a fair chunk of Article III, nearly all of Article VI, and many of the Amendments. It has occurred to me, though, that such an answer is equivalent to saying, “Article V.”

Article V is the part of the Constitution that establishes a method for correcting or improving the Constitution itself. The founders put Article V in the Constitution expecting change would be needed. In their wisdom, they made amending a little more difficulty than simply passing legislation.

The existence of festering imperfections in the Constitution after two centuries proves corrections haven’t been made as often as needed. The goal was a “perfect” union, and perfection hasn’t been attained. Tushnet contends that Article V, which demands a super-majority of Congress and of the states to amend the Constitution, makes amending too difficult. That’s stupid.

 

The “Necessary and Proper” Clause

Mark Graber | University of Maryland

 Professor Graber focuses on a three-word phrase in Article I, which says, “The Congress shall have the Power. . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

His complaint is that “necessary” is clearly the wrong word. Hardly anything ever is “necessary.”

Think about it. If your dog is missing, you might think it proper to take action to get it back. There are several things you could do. You could post handbills on phone poles throughout your neighborhood. But that is not necessary. You could instead walk or drive around the area calling the dog’s name. But that is not necessary, either. You could simply wait until the dog gets hungry and returns home by itself. Various courses of action are possible to accomplish any goal. One might be more effective or more practical than others. But hardly ever is one specific course of action – or even one policy – “necessary.”

 Graber observes that Massachusetts’ constitution at the time authorized the legislature power to enact,  “wholesome and reasonable orders, laws, statutes and ordinances.” This would have been a more sensible wording.

“Necessary and proper” was peculiar from the very beginning. The phrase first appears at the Constitutional Convention in the recommendations of a Committee of Detail that continued working during a week when other delegates went fishing. Madison (in Federalist essay #44) and Hamilton  (in #33) both consider it in the Federalist Papers, Madison assuring readers that “had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication.” Which is Madison’s ways of claiming that “necessary and proper” didn’t change anything.

Three years later, in 1791, during George Washington’s first term, Alexander Hamilton wanted to start a national bank. Thomas Jefferson said it couldn’t be done, because the Constitution doesn’t authorize Congress to create banks. Hamilton flourished the “necessary and proper” clause, and argued that this gave Congress the power to do nearly anything. He insisted that “This is what I want to do” meant the same as “This is necessary and proper.” He got his bank.

The “necessary and proper” clause has, over the life of the Constitution, been cited many times as a justification for expanding the powers of the national government. It has been tremendously significant in the life of the nation, but only because the phrase doesn’t mean anything. That’s stupid.

 

Old Men (and Women) in Positions of Power

Lucas A. Powe | University of Texas

 Article III, Section I of the Constitution says federal judges “shall hold their Offices during good behavior.” And that amounts to saying they can stay in power until they die. Powe say this is stupid.

This criticism means much more coming from an expert in law, who has read with acuity the work of many judges over many years’ time. An ordinary citizen might say, “Age is no barrier. My grandmother is 87 and she’s sharp as a tack.” But grandmothers are not the issue. Federal judges are. Someone like Professor Powe has studied the writings of judges who were in their 30s and in their 80s. If he says their later writings are not as good as the earlier ones, he’s probably right.

Alexander Hamilton claimed otherwise. He wrote in Federalist #78, “The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government.” But again, Powe writes from an informed position that Hamilton lacked. Hamilton didn’t know how long judges would be living in the future, or how obstinate they would be about remaining in power as their capacities waned, or how politicized judgeships would become. Powe, knowing all those details, says unending judicial terms are stupid.

Ruth Bader Ginsberg is a sort of icon for liberals and feminists. But some political strategists criticize Ginsberg for staying on the bench until she died. President Barack Obama approached her in 2013 with the idea that she could retire and make way for a younger judge. If she had retired at Obama’s suggestion, she’d have been replaced with an Obama appointee. Instead, she stayed on the court until Trump was in the White House and Republicans in charge of the Senate. And now Ginsberg’s seat on the Supreme Court is occupied by a judge with very different views who will have years to undo Ginsburg’s legacy .

 

State control of elections

Jeffrey Rosen | CEO of the National Constitution Center

The Constitutional Convention involved a great deal of contentious debate, and some very critical matters had to be resolved before any final agreement could be reached. One matter that was not deemed critical – and which was not settled at the convention – was voting rights. Despite the importance of elections in choosing government officers, the Constitution left it to the states to manage elections.

Madison explained in Federalist #52 that setting a national standard for voting rights would have been hard, and was probably unnecessary. Voting is a form of power, and Madison surmised that no state would curtail that power among its own residents. But of course they would. Madison failed to envision how white officers would impede black citizens’ efforts to vote because he couldn’t imagine black people ever voting at all. Jeffrey Rosen writes that states have been energetic and creative about weakening the voting rights of their own residents.

Maybe there was some logic for allowing states to exclude broad classes of voters in 1789, when only propertied, educated, white men were thought capable of casting informed votes. But uniform and universal suffrage is the national policy today, and it makes little sense to tolerate a patchwork of inconsistent and parochial state restrictions.

This patchwork exists because Section 4 of Article I of the Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

States have used this authority to impose poll taxes, tests, grandfather clauses, gerrymandering, Photo ID restrictions, voter purges, inconvenient placement of voting places, and severe residency requirements. In many places, it is harder to vote now than even a decade ago.

Rosen says this should have been avoided, and could have been if the Constitution had prescribed consistent voting policies from the start, rather than relegating discretion to the states. Stupid.

 

Balance/Separation of Powers

Theodore Lowi | formerly Cornell University

One of the cleverest and most celebrated elements of the Constitution is the careful and distinct balance of powers between the three branches of government. Theodore Lowi chose this as his manifestation of Constitutional stupidity – because, he says, the three separate branches have never been balanced.

At the level of high school civics lessons, it is easy to say that Congress makes law, the president implements laws, and the courts interpret the laws. But, Lowi says, one branch or another has always dominated. For the first century or so, it was the Congress. More recently, it is the president. The courts have always been a weak third. There have been times when one branch resisted or opposed another. But the three branches have never been in real balance.

We often hear members of Congress in recent years talk about “three co-equal branches of government.” They evoke that phrase because they wish it were true. It isn’t. The president is clearly the most powerful government actor today, and Congress wishes it were equal.

 Lowi says this confusion about balance is because the Constitution fails to define and constrain the role of political parties. The founders imagined that Congress would always stand in a fixed relation to the president. But history shows that the relationship changes according to the party alignment of the presidency and the two houses of Congress. Congress is only a substantial check on the president when both houses have majorities of the opposite party.

“What we have now – and have had for long enough to consider it institutionalized – is dual-party government, with each party nested in one of the branches. . . . Each party expects to control one of the branches, and each party therefore operates as a majority party. After a while, each begins to think like a majority party.”

In 2019 and 2020, Republicans held the White House and the Senate – Democrats controlled the House. As Lowi’s model of behavior predicts, the Democrats under Nancy Pelosi used the powers of the House to oppose the president — even when he acted within his Constitutional prerogatives. The ascendance of party affiliation over Constitutional structure was even more evident in 2009, when Republican Senate Majority Leader Mitch McConnell stated, “The single most important thing we want to achieve is for President Obama to be a one-term president.”

The Constitutional doctrine of balance of powers never intended for the Senate to decide how long a president should hold office (except through impeachment). But when the president is from the opposite party, a politically motivated Congressional leader is expected nowadays to stand in the president’s way. Under “dual-party government” party alignment means everything, and Constitutional structure is by-the-way. Neglect of a genuine and permanent balance of power between the three branches is, in Lowi’s mind, stupid.

 

Criminal Rights

Louis Michael Seidman | Georgetown University

 The 4th, 5th and 6th amendments all prescribe the rights of a person accused of a crime. According to Professor Seidman, these three amendments give Americans more explicit rights at trial than the citizens of any other country. (He wrote this more than 20 years ago. It’s uncertain he would say the same today.)

The trouble, as Seidman sees it, is that those explicit Constitutional rights become targets for aggressive prosecutors and police. Citizens have the right to due process, but due process only means what the courts say it means. The same for “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

“By now the Fourth Amendment is so riddled with exceptions and limitations that it rarely prevents the police from pursuing any reasonable crime control tactic. Although the Supreme Court continues to insist on the ritualistic reading of the Miranda warning, judges have virtually gone out of the business of actually policing the voluntariness of confessions and regularly sanction the sort of coercive tactics that would have lead to the suppression of evidence a half-century ago.”

The rights made explicit in the 4th, 5th and 6th amendments are no doubt a help to anyone accused of a crime. I don’t know. I’ve never been arrested. But the American criminal court system pits powerful government actors – the full-time professional police and court systems – against individuals assisted by often underpaid defense lawyers and occasionally by non-profit civil rights advocates. The media weigh in on the struggle with occasional mentions of individual rights but far more frequent alarms about crime. These forces combine to diminish civil rights, and the Constitution has not stopped the diminution. Stupid.

If you don’t like what you read here, remember that you haven’t yet seen what these authors wrote. I’ve only given a brief summary of each essay. I’m sure I haven’t done justice to their arguments. I’ve clearly added my own thoughts into Professor Rosen’s section.

I urge readers who liked something they saw here, but especially readers who didn’t, to find the book, read at least some of it, and give these scholars a fair listening. Several of them are among the most prominent Constitutional scholars in the nation, and you’ll begin to recognize their names as you see them quoted and interviewed. Here’s for example, is Professor Seidman of Georgetown elaborating on the idea of Constitutional stupidity:

Think:

• How difficult is is for you to admit that the Constitution may be, at least in part, stupid?

• Does reading the opinions of top scholars on this point make you respect the Constitution less, or respect the scholars less?