Constitutional law as it shoulda been

In learning to reason impartially about constitutional law, a valuable exercise is to come up with a list of instances in which the best reading of the Constitution cuts *against* your own view of good policy. Ilya Somin goes first, with examples that include near-total Congressional control over foreign trade; too much use of juries; the extreme difficulty of removing a seriously bad President; the near-indelible status of state lines; and an amendment process that is too hard to use.


  • Woulda, coulds, shoulda. The only respectable cure for this malaise in a constitutional republic is another constitutional convention. It certainly is not through an unelected supreme court.

    • If you actually bother to read the VC article by Ilya Somin, he is absolutely NOT suggesting that the Supreme Court take it upon himself to fix the things he doesn’t like.

      Also, go back and re-read the first sentence or two in Walter’s blurb.

      This isn’t about fixing the things Ilya, or you, think are wrong with the constitution as it is, it’s about testing the impartiality of a method of constitutional analysis by looking for places where that analysis cuts against the outcome the user of that method would prefer on a policy basis.

  • Thank you, Matt.

  • Great article.

    That said, I’ll disagree with some of the “bugs” in the article. In regards the amendment process, I’d argue the difficulty is a feature, not a bug, in that it requires a broad consensus over an extended period of time to enact amendments. Perhaps its a quibble on how difficult (magnitude of consensus) and the time scale involved, but unless there is a persuasive, specific, argument of how a different system would work better, I take the Engineers motto of “don’t fix what ain’t broke” position.

    One point that Ilya is silent upon, where I take exception in the Constitution: Congress is given the power to regulate the value of money.

    “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;”

    The regulate the value thereof and of foreign coin is the problem. The Framers grave error was this and is the root of many of the problems today. IF it had been that the Federal Government could coin money, of gold or silver only, and that the unit of currency was only permitted to be weight of fine metal, much of the ills of the current era would be avoided. The scope and scale of the Government would be naturally limited in such a system. Wars of convenience (most of current conflicts) couldn’t be financed, and therefore would be avoided. The strip mining of the middle and working classes by financialization would be impractical (who benefits when new dollars are printed into existence? Those who get them first, which are the already rich and powerful).

    Another one that is covered on this page quite often: Securing for limited times to authors and inventors. Yeah….limited….how many years? Upwards of a hundred years?

  • And why the disparity between inventions and copyrighted works? One would think that terms of government monopoly should be the same regardless of whether it’s hard goods or works of expression…