What If We Designed American Government From Scratch?

https://worldhistory.medium.com/what-if-we-designed-american-government-from-scratch-fa33bb8a870f

What would we do again — and what would we ditch?

 George Dillard  June 20, 2023

 

 

There’s a whole cottage industry devoted to explaining why the American government works the way it does. This cottage industry is dominated by historians because the answers to these questions are usually historical.

Unfortunately, a lot of the time it can feel like we’re trapped by our history. There are a few charming quirks in our government that we can trace to historical events, but a lot of our dysfunction and failure comes from the accretion of events and precedents over time.

Sometimes I wonder — if we were to make up the American system of government from scratch, what would it look like? It seems to me that there are a lot of aspects of our system — many of which we think of as unchangeable realities — that we would never implement if they weren’t already there.

So, if we were designing the American system of government anew, what wouldn’t we do again?

First and most obviously, we would not have a Second Amendment. If we were installing a new government, would we really insist on including a poorly-written, confusing right to firearm ownership? I think not.

The United States is unique in its devotion to gun ownership and the degree to which its citizens live in fear of guns and their owners. No other nation in the world approaches America’s rate of gun ownership (#2 on the list, Yemen, has less than half as many guns per capita). There’s a good reason that every other nation controls gun ownership much more than we do— the link between gun ownership and gun violence is well documented.

The only reason that a large portion of the American public considers gun ownership a fundamental right is that it’s in the Constitution, and many Americans revere the Constitution. But if we were starting over, we would never include a blanket right to firearm ownership in the first place. We would not seek to implement a policy that is guaranteed to make us less safe.

The other obvious one is the Electoral College. It’s our constitutional appendix, a vestigial organ that we don’t notice until it malfunctions and endangers us.

The idea of voting to elect a group of people who then select our president for us is fundamentally undemocratic. It might have sounded good to the powdered-wig aristocrats who wrote the Constitution, but it’s clearly a bad idea now. And the way in which it weights states’ votes is obviously unfair.

If we were designing a new government, nobody would suggest a complicated scoring system that privileges low-population states and runs the risk of the less popular candidate winning. We’d just go with the popular vote because that’s obviously more democratic and fair.

Plus, the Electoral College increases opportunities for electoral shenanigans and loss of public faith in the government. None of the chaos around the 2000 election and none of the lies and violence on January 6th would have happened in America without an Electoral College.

If we started from scratch, I doubt we’d have our current system of electing Senators, either. It seems pretty dumb to have a system in which one person in Wyoming gets the same amount of representation in the Senate as 59 Californians. I’d imagine we would not have an upper house of Congress at all, make the states more equal in population, or find some other way to make the Senate make sense.

We wouldn’t put justices on the Supreme Court for life, either. When the Constitution was written, the average life expectancy for an American was in the 30s (those who made it past childhood usually lived into their early 60s). Now, a judge appointed in his 40s could conceivably be on the court for close to half a century. That’s dumb, and I doubt we would do that today.

In fact, I wonder whether we’d have a presidential system at all. The United States has invaded its share of countries, and we’ve installed new governments in a lot of them. Most of the time, we haven’t put in place a system of government like our own. instead, we tend to establish parliamentary systems, as we did in Germany, Japan, and Iraq. Is this because a presidential system is inferior — too open to authoritarianism and too prone to gridlock? Maybe we’d choose to install a parliamentary government here, too, if we had the chance.

Of course, if we were making up a new government from scratch, we’d probably add some things that the framers weren’t thinking about in the 1700s.

It’s hard to ignore the fact that some of our biggest cultural fights today are over the right — or lack thereof — to bodily autonomy. The battles over abortion and trans rights are essentially about who has the right to do certain things to their own bodies or to others’.

The Constitution, written in an era in which people could literally own each other, doesn’t spend a lot of time defining people’s rights over their own bodies. This means that a number of Supreme Court decisions around these issues — like Roe v. Wade — have essentially been based on vague “implied” rights in the Constitution that are duct-taped together with circuitous legal reasoning. Even pro-choice lawyers generally acknowledge that decisions like Roe are based on a “shaky legal foundation.”

It’s possible to imagine a future in which we’re able to change our bodies in all sorts of ways — perhaps there will be implants that would make us or our children stronger and smarter. What sorts of regulations should govern these new technologies? I’d imagine that a new Constitution would be clearer about what we can do to our own bodies — and those of others.

Another thing the framers didn’t think a whole lot about was privacy. The so-called “right to privacy” was only developed in the 1890s, when new technologies like photography were starting to change people’s ability to live private lives. Now, technology has made a private life all but impossible — our habits and preferences are tracked by our phones and computers, and it’s increasingly difficult for anyone to keep their lives away from prying eyes, as Ron Swanson found when he tried to go off the grid:

I’d imagine that a new Constitiution would include clear language on whether we have an actual right to privacy, and what that entails.

Remember when Mitt Romney told us that “corporations are people, my friend?” Though his sentiment was legally correct, it was politically disastrous. When the framers wrote the Constitution, not only were corporations not people, they barely existed at all. The modern corporation is a pretty recent invention — it’s a little over a century old — but it has become an incredibly potent force in American life.

As with abortion and privacy, we’re trying to regulate corporations using archaic legal principles that were developed in a world in which an entity like Apple or Amazon was unimaginable. A new government would certainly have a clearer understanding of what corporations could and could not do.

Finally, I think a government-from-scratch would think harder about the rights of nature. Our understanding of nature has developed immensely since the 1700s — we know now that our fates are intertwined with that of ecosystems, that our actions can have a massive impact on the health of the planet, and that many animals are quite intelligent. But nature gets no mention in the Constitution, and our legal system often acts as if nature is an inexhaustible resource to be exploited in perpetuity.

If we were starting over, perhaps we’d incorporate organisms other than humans into our systems of rights and responsibilities.

Will there be a moment at which our system becomes so encrusted with history’s leftovers that it just makes sense to scrap the whole thing and start over? I don’t know.

We’re not going to draft a new Constitution anytime soon. That’s probably a good thing — can you imagine what a complete disaster a constitutional convention would be in today’s America?

But it’s useful, I think, to reflect on what our system does and doesn’t do well. We can at least dream of a better system and try to adjust the one we have while acknowledging the hold that history has on the present.

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