Simone Lawson
The United States Constitution, drafted in 1787, has been criticised for its lack of a bill of rights, protection against tyranny, and specific guarantees of freedom of religion and freedom of the press. The US Constitution has also been criticised for its failure to address the issues of deadly racial injustice, widespread economic distress, and the government's inadequate response to the COVID-19 pandemic. Some claim that the US Constitution has failed and needs to be replaced, while others argue that the US is not in a constitutional crisis and that the Constitution is equipped to handle the current challenges.
| Characteristics | Values |
|---|---|
| Ineffective governance | High death toll from the pandemic |
| Inability to mitigate national crises | Widespread economic distress |
| Failure to defend democracy | Racial injustice |
| Inability to respond to national challenges | Lack of prompt action from Congress |
| Lack of effective limits on power | --- |
| Lack of safeguards against corrupt government officials | --- |
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What You'll Learn
Inaction in the face of a pandemic
The COVID-19 pandemic in the United States exposed weaknesses in the country's public health system and highlighted the different values and priorities of the two major political parties. The pandemic also intersected with long-standing digital divides, with lower-income teens reporting more tech-related challenges with schoolwork.
State and local responses to the pandemic included mask mandates, cancellation of large-scale gatherings, stay-at-home orders, and school closures. However, some states, like Texas and Arizona, proceeded with reopening without adequate contact tracing programs in place. Funding for contact tracing was thought to be insufficient, and privacy concerns prevented the implementation of more invasive measures used in other countries.
The pandemic also led to a sharp increase in reported incidents of xenophobia and racism against Asian Americans, and there were disproportionate numbers of cases and elevated levels of vaccine hesitancy among Black and Latino populations.
The US response to the pandemic has been criticised for a lack of widespread mask orders and state economic reopenings, which resulted in a sharp rise in cases. By May 27, 2020, less than four months after the pandemic reached the US, 100,000 Americans had died from COVID-19.
The pandemic also had a significant impact on work, with a majority of American workers (62%) having jobs that couldn't be done from home. However, for those who could, the pandemic ushered in an era of increased remote work that continues today.
While the US response to the COVID-19 pandemic has been criticised, it is difficult to say if it constitutes a "constitutional crisis". According to a panel of Harvard Law professors, the US is probably not in a constitutional crisis, at least not yet. Professor Jeannie Suk Gersen stated that the culture has lost its ability to discuss disagreements with presidential policies without framing them as unconstitutional. Professor Ruth Greenwood agreed that there is not yet a constitutional crisis but emphasised that it will take the cooperation of all branches of government to avoid one.
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Failure to protect democracy
While the United States is not currently in a constitutional crisis, there are concerns about the country's ability to protect its democracy. The pillars of US democracy—free elections, the rule of law, and anti-corruption efforts—have been threatened under the Trump administration.
One of the most significant threats to democracy occurred in 2020 when then-President Trump refused to concede the election and encouraged his supporters to storm the Capitol. This incident, along with Trump's pardon of January 6 insurrectionists and his attempts to restrict birthright citizenship, raised concerns about the impartiality and independence of the US rule of law.
The separation of powers and checks and balances that are fundamental to the US Constitution have also been challenged by the executive actions of the Trump administration. There are worries that the administration will not comply with judicial decisions, and actors in the federal government will be unable to hold them accountable.
To protect democracy, regular citizens, especially at the local level, can play a crucial role. Shifting information consumption towards more in-depth and accurate sources, such as local news providers, can help individuals stay informed and engaged in their communities. Civic engagement and participation in elections are also essential for safeguarding democratic values.
Additionally, addressing racial authoritarianism and reversing positions on issues of race, civil rights, and electoral participation are necessary to protect democracy in the United States. Quantitative measures and indices that track electoral processes, political participation, government functioning, and civil liberties can help monitor democratic health and identify areas of improvement.
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Absence of a bill of rights
The absence of a bill of rights in the US Constitution was a significant concern for Thomas Jefferson, who was dismayed by this omission. He believed that a bill of rights was necessary to guarantee certain freedoms and protections for the people. These included freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the force of habeas corpus laws, and trials by jury.
The Bill of Rights, comprising the first ten amendments to the Constitution, was eventually added in 1791 to address this very issue. The amendments were drafted by James Madison, who sought to limit government power and protect individual liberties. For instance, the First Amendment prohibits Congress from making laws that establish a religion or restrict free speech, while the Fourth Amendment protects citizens' right to privacy and security in their homes.
The Ninth Amendment further emphasizes that the listing of specific rights in the Constitution does not deny or disparage other rights retained by the people. Similarly, the Tenth Amendment reinforces federalism by stating that the federal government only has the powers explicitly delegated to it by the Constitution, with all other powers being reserved for the states or the people.
Despite the addition of the Bill of Rights, there was a long period of inaction and non-enforcement by the courts. For over a century after ratification, racial segregation, sex discrimination, and persecution of minority religious groups were prevalent in American society. It was not until the formation of organizations like the American Civil Liberties Union (ACLU) and the NAACP in the early 20th century that constitutional violations began to be challenged in court, particularly regarding First Amendment freedoms, privacy rights, and equality.
The absence of a bill of rights in the original Constitution, and the subsequent lack of enforcement, highlights a failure to uphold constitutional ideals and protect the rights and liberties of all Americans.
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Lack of checks and balances
The US Constitution divides the government into three branches: the legislative, executive, and judicial. Each branch has specific powers and is designed to serve as a check on the powers of the others, creating a separation of powers and ensuring that no single branch dominates.
However, some commentators have argued that this system of checks and balances is eroding. For instance, during the Obama administration, some claimed that the president was daring Congress to defend its role as a representative of Americans against his unilateral agenda. Similarly, during the Trump administration, some argued that the courts were failing to serve as a check on the executive branch.
For the system of checks and balances to work effectively, each branch must be willing to guard its constitutionally granted powers. If members of Congress place party loyalty above their constitutional responsibilities or are reluctant to push back for fear of political consequences, the system breaks down.
The concentration of power in the Executive Branch is contrary to the founding principles of the US and foreign to the realities of American civic life. In a country as large and diverse as the US, no one individual can claim to speak on behalf of all Americans.
The system of checks and balances was designed to prevent power grabs by any one branch of government. The founders of the US Constitution recognized the potential for one branch to try to usurp the powers of another and sought to prevent this through the separation of powers.
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Inability to accept election results
Despite the United States pioneering self-government, the country has failed to enforce basic and necessary election protections. For example, Germany and Canada require the use of paper ballots, counted in public by local officials, which substantially reduces the number of disputes. In contrast, the American patchwork of voting methods can lead to basic chain-of-custody problems.
A Scripps News/Ipsos poll conducted in October 2024 found that 77% of Americans and Wisconsin residents would accept the election results if their preferred candidate lost. The survey also revealed that 63% of Americans and 62% of Wisconsin residents were confident that all votes would be accurately counted. However, the survey also highlighted a fear of potential political violence, with 62% of Americans and 72% of Wisconsin residents believing that violence was likely to occur following Election Day.
A similar Reuters/Ipsos poll conducted in November 2024, following Donald Trump's presidential election win, showed that Americans overwhelmingly accepted the election results. 75% of registered voters deemed the 2024 election legitimate and accurate, compared to 58% in 2020. This positive shift from 2020 to 2024 was driven by Republican registered voters, with a 65-point increase in those considering the election legitimate and accurate.
While the above polls indicate a general willingness to accept election results, it is important to acknowledge that a significant minority of Americans have expressed concerns about the integrity of the electoral process. The Reuters/Ipsos poll found that 21% of respondents were unsure about the legitimacy of the 2024 election, while 4% believed it was rigged or a result of illegal voting. Similarly, the Scripps News/Ipsos poll revealed that only 31% of Americans viewed US democracy as strong, with a majority believing it to be weak. These findings highlight a need for continued efforts to improve trust in the electoral process and ensure that all Americans feel confident in the accuracy and fairness of election results.
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Frequently asked questions
No, the US constitution is not equipped to handle modern-day crises. The constitution has failed to mitigate or even address crises such as the COVID-19 pandemic, deadly racial injustice, and cyberattacks. This has resulted in a failed constitutional system that is unable to respond to national challenges and protect democracy.
The consequences of the US constitution's failure can be seen in the government's inadequate response to the COVID-19 pandemic, with President Trump refusing to take any action, resulting in a high death toll. Additionally, there is a lack of prompt action by Congress to address the assault on the Capitol, indicating a failure to protect the nation.
To address the failures of the US constitution, a more liberal and democratic constitution is needed, with effective limits on power and improved safeguards against corrupt or insurrectionist government officials. A majority of votes should be required to win presidential elections and control both chambers of Congress. Additionally, the inclusion of a bill of rights has been historically advocated to protect the essential rights of citizens and limit governmental power.
