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Sep 16, 2018 48 tweets 10 min read
Constitutional Decay: The fundamental challenge to American democracy.

Want to protect and defend the #Constitution? Then stop hoping to paper over its rot with amendments: the framework of our nation requires a rebuild. Thread:

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In sum: While its values still hold, much of the detail in the world’s oldest living constitution is increasingly incompatible with reality. This harms America by subjecting modern solutions to 18th century thinking. The #Constitution needs major revisions within a decade. 2/
America faces multiple domestic political problems. Underlying many, if not all of them, is a structural problem that will only become more severe with time, and may ultimately threaten our very nationhood. 3/
The good news is, it is a problem that has a solution, and that solution is entirely in our hands. The bad news is, our daily politics are an obstacle to addressing it in time.

That problem is ‘Constitutional Decay.’ 4/
You will hear people exclaim that our Constitution is the oldest “living” constitution in the world. That’s not a good thing.

Like the humans who write them, I fear that constitutions are born unsteady, eventually achieve balance, but at some point deteriorate with age. 5/
For our Constitution, that point has been reached. The text that is the basis of our union and our jurisprudence is falling out of step with the realities of the modern world. It is in desperate need of a significant refresh - if not a near-total rewrite - and soon. 6/
As you read this, you’re probably already disagreeing. After all, isn’t it true that “the genius of the Constitution is that it can always be changed.”

No. Stop quoting Robin Williams. He was wrong. I’ll explain why further down. 7/
#ConstitutionalDecay isn’t an abstraction. It manifests in every debate where words written in 1787 fall short of providing a useful or relevant framework in 2018. It’s at the root of issues as diverse as gun control, abortion, data privacy, and healthcare. For instance, 8/
Defense: Article 1 of the Constitution gives Congress the power to "raise" armies" and "maintain" a navy. Why the different verbs? The thinking in 1787 was that a Navies require wooden ships – you can’t just snap your fingers and have a fleet of trained sailors – 8/
- but for any army, on the other hand, all you need is a bunch of guys to show up when called, and bring their muskets. Bonus points if they bring a horse. The Constitution envisioned a series of State militias from which the Federal Government could draw on, if needed. 9/
The Framers were so averse to a standing army that they also included a clause limiting all Army funding to a 2-year window. Raise, Fight, Disperse, basically.

This limitation irks many DOD budget and contracting offices to this day. So, point to the Framers, I guess. 10/
It was only four years later, however, faced with rebellions and threats along the Western frontier, that Congress decided not to send home the army it raised that year, 1791. America’s had an active duty army ever since – that Congress has happily “maintained.” Point to DOD. 11/
The turn-about to support a standing army is perhaps the earliest example of Constitutional Decay, but Congress’ decision in 1791 echoes through two of the most contentious political topics of 2018: Congressional War Powers, and the #SecondAmendment. 12/
At first glance, those issues may seem unrelated. But in the Constitutional context, they all fit together – in fact, they barely make sense if you separate them out.

Congress has the unique power to declare war because it has the unique responsibility to raise armies. 13/
And in turn, Congress’ ability to raise those armies depends (or was intended by the Constitution to depend) on the States ensuring their militiamen have access to arms.

Declare war, raise an army, arm an army. It’s a straightforward formula that made sense- in 1787. 14/
But look at where we are now on these Constitutional requirements:
“Raise” an army isn’t even a question.
Congress' prerogative "to declare war" was last exercised in 1941.
…But the 2nd Amendment, on the other hand, is so politically secure that it is virtually untouchable 15/
Treating each of these three related Constitutional requirements so differently from each other would appear to be inconsistent with the Framers’ intent. But actually, that’s not the problem. The problem is, the Framers’ intent has proved to be inconsistent with reality. 16/
War, in 1787, was a thing that slowly got churning over the course of a few months. The idea that 10 minutes might be the timeframe available for a decision to wipe out the planet surely never crossed the Framers' minds. 17/
The fact is, today's crises require a scale and speed of response of which Congress is simply not capable. That’s the reality – a reality with which our most fundamental law cannot be squared. 18/
And just as nuclear technology has laid waste to Congress’ role in declaring war, advances in firearms technology, as many have pointed out, should call into question the logic used to defend an expansive interpretation of the 2nd Amendment. 19/
Bullets that contain their own propellant; No ramrod and guncotton between rounds; magazines; the ability to fire more than two shots a minute: These radical advances in technology might not have led to changes in policy but they should at least lead to debate about relevance.20/
Across all the roles of government you can see a similar pattern. Did the Framers *really* intend the interstate commerce clause to enable near-universal healthcare? Of course not! The idea of universal healthcare never even crossed their minds. 21/
Personally I support universal healthcare - but I believe it should be adopted - or dismissed - based on the merits, not on whether it can be squeezed into a framework designed for covered wagons. 22/
Many Americans don’t think of healthcare or education as ‘rights’. But they are in many other countries. We're sitting here with our weird and dysfunctional quasi-subsidized post-ACA model because what made sense in 1787 is hardwired into our cultural norms. That's... weird. 23/
We can't even implement fixes to our healthcare system without someone finding a technicality that gets appealed to #SCOTUS, where innovative policies are mere fodder in a multigenerational debate about whether a 231-year old document provides a framework, or a straitjacket. 24/
It's kinda nuts when you step back and think about it that way. 25/
But out of everything, the most dangerous area of Constitutional Decay relates to the basic electoral structures of our democracy. 26/
The #electoralcollege and the 2-Senators-per-State rule were groundbreaking, but they were also practical solutions to achieve compromise between between the interests of the states - those interests being defined, of course, entirely by the landed white males who held power. 27/
I'm not convinced the system works any more. At least, it does not provide the same degree of direct and accountable democracy as newer Constitutions in Europe do. We once innovated in freedom; now we lag in it. 28/
The evidence for this is substantial: Since 1988, the #Republican candidate has won a plurality of the popular votes precisely twice (1988, 2004) out of eight elections. And yet, when 2020 comes, they will have held the #WhiteHouse for 16 out of 32 years. 29/
This problem is compounded in the #Senate. In 1790, the population of New York State, for instance, was about 40% larger than that of South Carolina. Already a democratic deficit when it comes to voters per Senator, but that's the deal they made. 30/
Today, the population of New York State is almost four times that of South Carolina. Same number of Senators, though. 31/
The Framers were looking at a nation whose future lay in the great forests of Ohio and empty spaces (to them, anyway) beyond - a nation of farming settlements dotted across the vast terrain, generally evenly distributed. 32/
That's not what we have today. In 1800, about 8% of Americans lived in cities. Today, it's over 80% and increasing. And those cities are not spread evenly around the country. Rather, 50% of the population live in just nine of our fifty states. 33/
Put simply, it's a fundamentally different geopolitical and political-economic reality than it was in 1787. But the framework that supports it all has barely changed - and because it cannot keep up, it is dragging us down. 34/
The United States Constitution is one of the most remarkable documents humanity has produced. But like everything we produce, at some point it faces obsolescence. 35/
When your a constitution becomes a reason why your citizens die younger than others; when it becomes a reason why your children are slaughtered; when it sustains a structure of government that is increasingly untethered from the will of the people, it is time to make a change.36/
Some will argue that the Constitution allows for its amendment, and that a couple of wisely crafted, carefully negotiated, and well-sold paragraphs can fix the most pressing issues. In response, I say: that worked in the past. It is unlikely to continue to work in the future. 37/
The reasons for this are two: first, because our reverence for the document has replaced our own common sense. Just look at the history of religion to understand how divisive it can be when you start treating some well written ideas as if they were the immutable word of God. 38/
Second, the Constitution relies on a the functionality of the democratic structures it created to maintain its responsiveness to the electorate. 39/
But I fear that democratic deficits in our system are already severe enough that the popular support of the people for an amendment cannot translate into the 2/3rds majority in Congress needed for amendments. 40/
And what's worse, the longer we wait, the more that gap between the people and its government will grow, the harder reforms will be, and the more brittle the entire system will become. A brittle democracy is a dangerous thing. 41/
To be clear, ultimately, and despite the fact I believe significant changes are needed, this is a plea for reform, not revolution. If we believe in its values, we must save the Constitution from itself. 42/
The core vision of the Constitution - limited government with power shared across three federal branches, the states, and the people, with the system stabilized through fair representation, free speech, and the rule of law - is as relevant today as it was 231 years ago. 43/
However difficult this effort might be, pursuing change through the mechanisms the Constitution established is the best way to rejuvenate our system: taking any other approach, is unthinkable. 44/
Many of our nation's domestic challenges are attributable to Constitutional Decay. That decay is making our entire system more inflexible, less responsive, and ultimately less democratic. It is critical that we act within the coming decade to refresh and modernize the text 45/
so that we may continue to carry forward the project the Framers laid out in 1787 to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty, and move ever closer to that more perfect union. /46

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