Yves here. Many readers have found Tom Neuburger’s discussions of US constitutional issues to be informative and thought provoking, so it may seem churlish to have a quibble. But invoking the Constitutional frame in the midst of a reactionary revolution seems contrary to the fact that many of the Founding Father figures for this movement like Milton Friedman are libertarian anarchists. They are opposed to the rule of law since it will limit all those Ayn Rand supermen (even though, incoherently, they heart contracts).
By Thomas Neuburger. Originally published at God’s Spies
constitution (n) : The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state.
—Oxford Reference, Oxford University
“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.”
—Preamble to the U.S. Constitution
I’ve been writing much about constitutions lately, especially the American Constitution; for example, here and here.
Updating the Constitution
My contentions are these:
- That the American constitution has gone through three major revisions, each spurred by crisis to correct flaws in the previous one.
- That the current constitution has so far drifted from the previous public agreement (the FDR or New Deal constitution) as to be almost unrecognizable — which makes us due for a fourth.
Our Degraded Constitution
Our third (New Deal) constitution was in place from its 1937 confirmation by the Supreme Court through roughly 1980. It is now 2025 and much of that aggregate agreement, that constitution, has been completely or partly degraded, repealed in practice.
For example, there’s no more Fourth Amendment; the right to be free of “unreasonable searches and seizures” is gone completely, surrendered to the security state. The same with much of the Thirteenth (prison labor is slave labor), most of the Fourteenth (equal rights and due process are disappearing fast, except for corporate “persons”), and all of the Fifteenth (the right to vote is no longer guaranteed).
In addition, the New Deal constitution’s control of the economy as a way to “promote the general welfare” has been reversed; governmental control of the economy now helps the wealthy impoverish the people, the opposite of its original goal.
What Is a Constitution?
The Oxford Reference, the digital research platform of the Oxford University Press, defines “constitution this way:
The rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state. Most states have a written constitution, one of the fundamental provisions of which is that it can itself be amended only in accordance with a special procedure. The constitution of the UK is largely unwritten. It consists partly of statutes, for the amendment of which by subsequent statutes no special procedure is required (see Act of Parliament), but also, to a very significant extent, of common law rules and constitutional conventions.
It’s those “constitutional conventions” that interest us here. Written (“codified”) constitutions can be formally amended, but I would contend that even “fully codified” constitutions have uncodified parts, and that all of its parts are subject to amendment by unwritten agreement.
Consider again the fate of the Fourth Amendment (see above), which has been almost completely ignored by bipartisan practice. We’ve indeed traded “essential liberty” for (the illusion of) safety, to paraphrase Benjamin Franklin. The words of the Fourth haven’t changed. But agreement about how they’re applied certainly has.
Why Use the Term ‘New Constitution’?
Whether, like some, we call these changed agreements “new constitutional orders” or new constitutions, makes no real difference in practice. So many nations have fully uncodified (Israel, Saudi Arabia) or partially uncodified (Canada, China, the UK) constitutions that the use of the term “new constitution” when there are radical reversals and changes seems completely justified.
I also think it’s important to use the term “new constitution,” since it fully recognizes the radical nature of some changes. Consider our own partially codified constitution:
Our first — the document we call “the Constitution” — radically changed relations between the states and the federal government as established by the Articles of Confederation.
Our second — the Constitution with the codified Reconstruction Amendments — entirely repealed (made moot) everything the original document said about enslaved labor.
And our third, the entirely uncodified New Deal constitution, rests upon radical reinterpretations of parts of the original document — for example, the Commerce Clause in Article I, and the due process provision of the Fifth Amendment. No codified amendment was passed during FDR’s presidency, yet there’s a sea change difference afterward about government power.
The Next American Constitution
This matters because, as I’ve argued, we’ve so drastically changed the New Deal constitution as to make it almost unrecognizable in many important ways.
So we’re certainly due for a new one. In fact, the current administration seems determined to take to extremes, and also to make official by violating the court, all of the radical changes to the New Deal agreement. That agreement stood until Nixon expanded presidential power (both in 1968 and later) and Reagan revoked the New Deal agreement about both the economy and the Preamble’s instruction to “promote the general welfare” of the nation’s people.
The next constitution, if it lasts — I’m calling it, provisionally, the Neoliberal constitution, though that doesn’t capture the religious right or the dominance of the security state — will be the first to reverse the people’s ability to live a good life. As a result, it may not survive. The present order is certainly deeply unstable, absent a muscular, enforcing security state.
I’m going to stay with this theme. I wrote “The Next American Constitution” for the SF Chronicle in 2018 with the intention of authoring a book. The project was never completed because too much was then unknown. The destruction wrought by Nixon, Reagan, Clinton, Bush and Obama was extensive. I could see the way things were going, but I thought the outcome in doubt. Would a Washington, Lincoln or Roosevelt appear? The 2016 primary made that seem possible. Certain? No. But possible.
The outcome may still be in doubt — but not by much. Time to revisit the project. The Fourth American constitution waits in the wings, dressed and made up, ready to take the stage. The time to discuss it is now.
I’m inclined to think this should be put into abeyance. Need the coming collapse, chaos and even more crime to get people’s attention, then go for the Constitution. In short, things have to get a lot uglier before that makes sense as to it’s viability. Look at what Russia has gone through before they got to this point. One with a true President, not like the current crop of crap we have been and are stuck with.
I have morning coffee with a politically mixed group of “old-timers” in my little rural town, and one of the interesting things I’ve noted is that the group conservative has recently expressed the sentiment that the Constitution isn’t that important, has lots of flaws, and is woefully outdated– i.e. opinions I would normally associate with a leftist view. Strange times.
A Constitution is a promise and a promise is only as good as the people doing the promising–like that oath Trump took while Melania held the Bible. So it’s pointless to change the Constitution unless you also change the people who are charged with upholding it. And it should be pointed out that Biden was just as big a liar and disrespector of the Constitution as Trump.
One thing that seems to have changed over my lifetime is the decay of honesty in general. Where Nixon’s lies were once considered his greatest sin–“the coverup is worse than the crime”–our establishment now embraces obvious whoppers like Russiagate if it serves some power/political purpose. And so Trump, a shallow person prone to monkey see/monkey do, is taking an existing precedent and amplifying it to bizarre extremes. He’s running the government like he ran his businesses. In fact it seems like one of his main policy goals is to enhance the business opportunities for himself, his sons and son in law. Trump 2 is a revenge tour combined with some runway foaming. He probably means it about making America great again but in Trump’s mind America equals himself.
It’s the people and the way they act we need to change. Liberals think pieces of parchment run the world but they don’t. Personally I think the decline of religion may have something to do with less lip service, at least, to honesty. My Southern Baptist parents thought sinning would send you to Hell. One doubts that there is much talk about that view taking place on all those iPhones.
” “fully codified” constitutions have uncodified parts, and that all of its parts are subject to amendment by unwritten agreement.””
Seems a self contradictory sentence of repugnant beauty.
So you have verbally disconected “we the people” from the government… made them foes instead of one-and-the-same thing…..to support the goal of?
Is it to continue the appearance of two parties at war with eachother….in my view, specifically at the behest of the ‘corpos’ with the intent of installing a ruling CLASS …a king.
Is it just to say that the the republic is lost and we need to put a period upon it? or is it in hope no make sure that when times get tough ‘we the people’ should fight for founding principles ….despite what the two parties try to get away with?
“We, the People, are the rightful masters of both the Congress and the Courts. Not to overthrow the Constitution, but to overthrow the men who have perverted it.” – Abraham Lincoln
Going back to again to Jefferson where, again, he denotes a clear understanding of where history may go… or maybe where it is now – …..”The tyranny of the legislatures is the most formidable dread at present, and will be for long years,” Thomas Jefferson wrote to James Madison on March 15, 1789. “That of the executive will come in its turn, but it will be at a remote period.”
We are at that remote period and, maybe have been for 50 years
Nice two see those gentlemen being philosophers and taking ideas to their limit…
Neuburger is presenting a topic for greater public discussion that is vitally important during this time. However, I would suggest that the need for improvements in the constitution is not the direction the discussion needs to be led. We need to understand, as mentioned above, that the constitution has not been what American ideology has said it was. The American south was a single party apartheid sub-state for decades after the civil war in spite of the constitution. For decades after the civil rights and anti-war movements the pre-maga and neoliberal gang have controlled the government and ignored the constitution. We need to focus on ways to renovate the government in spite of the constitution. We must revamp and rebuild the performance of the supreme court’s functions without the current supreme court structure. We must revise and rebuild the congress so that it is no longer owned and managed by big donors. We need to revise and rebuild the office of the presidency so that one person is not given dictatorial powers. I believe we can do these things without the constitution, but not if it has to be done through constitutional amendments,.
we arw in a 4th Constitution—except it is “stealth” and ad hoc, with heavy reliance on the tripod of executive powers and (the true trope of) expansive judicial powers and administrative regulations (xx CFR abc).
Both parties are complicit; both parties complain when their sword gets used against them in the next term. both parties try to use their sword as their shield
If the right-wing ever gets the Constitutional Convention it is always begging for, we will see quite a battle between the Religious Right, the “Dark Enlightenment” tech brothers, and the monopoly corporate tycoons for their competing models of how to subjugate the 99% (or maybe just the 90%, or 80%) to a life of utter serfdom. It should be interesting to see which version of neofeudalism they end up encoding for us. Until then, we can count on reading news stories that blame any court decisions trying to restrain the onslaught on “activist judges” (notice how they never called the judges who reversed Roe-Wade “activist judges” though).
In one sense it can be argued that constitutions are the sacred texts of secular societies.
My own personality/psychology has been imbued with key concepts from our original constitution–like the supposed self-correcting mechanisms of regular elections, constitutional amendments, judicial review and free debate. I often view myself as a classical liberal who firmly believes that majority rule must be tempered by minority rights etc.
In my darker moments, in our contemporary situation, I sense that elections no longer function as a mechanism of agreement, but instead are experienced as either a catastrophe or a last-minute salvation.
No faction is appeased and every faction prepares for the next assault.
Ever darker yet is often a sense the our entire country is now imploding cognitively–there is no longer a shared horizon of meaning with each camp living in its own moral universe, speaking a language that the other cannot hear. The result is that the electoral process no longer is a way to settle disputes. It becomes how disputes intensify. Columbia, Harvard, Netflix, Substack and Twitter etc. are now all battlefields or simply rehearsals for the next escalation.
In 1985, I was a member of a Rape Crisis Centre in the province of New Brunswick. The House of Commons held meetings in that year in which ordinary citizens were invited to present Briefs to the Sub-committee on Equality Rights (of the Standing Committee on Justice and and Legal Affairs) which met in our province on August 29, 1985. The Centre Sent three representatives to the meeting with a Brief listing suggestions on how equality between men and women could be achieved from the point of view of women who work with the women who seek assistance at the Crisis Centre.
I was impressed that the government reached out to ordinary people with their particular experience in order to help create one part of the Charter of Rights and Freedoms. Our small group offered suggestions and our point of view was given consideration in the formation of the final document of the Charter of Rights and Freedoms in Canada.
Although constitutions are considered part of the judicial realm, in practice, they have always been part of the political realm. Like campaign promises, voters do not expect politicians to abide by their constitutions, and politicians are rarely punished for failing to do so.
A constitution is an algorithm. An approximation algorithm. Like the knapsack problem.