Major Flaws In The U.S. Constitution Recapped

The U.S. Constitution and its related political rules are deeply flawed and obsolete, but remain because they are hard to amend. Also, due to the power of imitation, state governments in the U.S. are also flawed (although less starkly in many respects), despite the fact that their constitutions are much easier to amend.

In sum, the 20th century ushered in the modern democratic era—an age in which many of the institutional fetters on popular majorities that were designed by pre-democratic monarchies and aristocracies were dismantled. Democracies all over the world abolished or weakened their most egregiously counter-majoritarian institutions. Conservative defenders of these institutions anxiously warned of impending instability, chaos, or tyranny. But that has rarely ensued since World War II. Indeed, countries such as Canada, Denmark, Finland, France, Germany, New Zealand, Norway, Sweden, and the U.K. were both more stable and more democratic at the close of the 20th century than they were at the beginning. Eliminating counter-majoritarianism helped give rise to modern democracy.

America also took important steps toward majority rule in the 20th century. The Nineteenth Amendment (ratified in 1920) extended voting rights to women, and the 1924 Snyder Act extended citizenship and voting rights to Native Americans—although it was not until the 1965 Voting Rights Act that the United States met minimal standards for universal suffrage…

But America’s 20th-century reforms did not go as far as in other democracies. For example, whereas every other presidential democracy in the world did away with indirect elections during the 20th century, in America the Electoral College remains intact.

America also retained its first-past-the-post electoral system, even though it creates situations of minority rule, especially in state legislatures. The United States, Canada, and the U.K. are the only rich Western democracies not to have adopted more proportional election rules in the 20th century…

The united states, once a democratic innovator, now lags behind. The persistence of our pre-democratic institutions as other democracies have dismantled theirs has made America a uniquely counter-majoritarian democracy at the dawn of the 21st century. Consider the following: 

America is the only presidential democracy in the world in which the president is elected via an electoral college, rather than directly by voters. Only in America, then, can a president be “elected against the majority expressed at the polls.” 

America is one of the few remaining democracies that retains a bicameral legislature with a powerful upper chamber, and it is one of an even smaller number of democracies in which a powerful upper chamber is severely malapportioned because of the “equal representation of unequal states” (only Argentina and Brazil are worse). Most important, it is the world’s only democracy with both a strong, malapportioned Senate and a legislative-minority veto (the filibuster). In no other democracy do legislative minorities routinely and permanently thwart legislative majorities. 

America is one of the few established democracies (along with Canada, India, Jamaica, and the U.K.) with first-past-the-post electoral rules that permit electoral pluralities to be manufactured into legislative majorities and, in some cases, allow parties that garner fewer votes to win legislative majorities.

America is the only democracy in the world with lifetime tenure for Supreme Court justices. All other established democracies have either term limits, a mandatory retirement age, or both.

One reason America has become such an outlier is that, among the world’s democracies, the U.S. Constitution is the hardest to change. In Norway, a constitutional amendment requires a supermajority of two-thirds support in two successive elected Parliaments, but the country has no equivalent to America’s extraordinarily difficult state-level ratification process. According to the constitutional scholars Tom Ginsburg and James Melton, the relative flexibility of the constitution allows Norwegians to “update the formal text in ways that keep it modern.” Americans are not so fortunate.

Of the 31 democracies examined by the political theorist Donald Lutz in his comparative study of constitutional-amendment processes, the United States stands at the top of his Index of Difficulty, exceeding the next-highest-scoring countries (Australia and Switzerland) by a wide margin. Not only do constitutional amendments require the approval of two-thirds majorities in both the House and the Senate; they must be ratified by three-quarters of the states. For this reason, the United States has one of the lowest rates of constitutional change in the world. According to the U.S. Senate, 11,848 attempts have been made to amend the U.S. Constitution. But only 27 of them have been successful. America’s Constitution has been amended only 12 times since Reconstruction, most recently in 1992—more than three decades ago.

From here.