Criticism Of The Constitution: Heaviest Hits

The US Constitution has been criticised for its treatment of race, its failure to include a Bill of Rights, and its alleged inability to resolve deep conflicts in American society. While it promised freedom, it excluded Black and indigenous people, women, and other marginalised groups. Critics have also targeted its constraints on simple majority rule, and its lack of adaptability to modern circumstances. The Constitution has been amended several times, particularly after the Civil War, to abolish slavery and ensure due process, equal protection under the law, and voting rights for Black men. Despite these amendments, critics argue that the Constitution falls short of guaranteeing fundamental rights and addressing racial discrimination.

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No Bill of Rights

One of the heaviest criticisms of the proposed US Constitution during the ratification debates was the absence of a Bill of Rights. This criticism was levelled by the Anti-Federalists, who argued that without an explicit enumeration of rights, the new central government would become too powerful and potentially infringe upon the liberties of the people.

The Anti-Federalists believed that a Bill of Rights was necessary to safeguard individual freedoms and prevent governmental abuse. They feared that without a specific list of protected rights, the government could interpret the Constitution loosely and encroach upon the rights of the states and the people. The Federalists, on the other hand, initially opposed the idea of a Bill of Rights, arguing that the Constitution's enumeration of congressional powers implicitly protected individual liberties by omitting any mention of powers that could infringe upon those liberties.

The Anti-Federalists' concerns centred on several key issues. One of the primary worries was that the Constitution, as written, did not explicitly guarantee freedom of speech, religion, and the press. The absence of these guarantees troubled the Anti-Federalists, who feared that the government could potentially restrict these freedoms. Additionally, the Anti-Federalists were concerned about the lack of protection for the right to keep and bear arms, which they saw as crucial for self-defence, hunting, and as a safeguard against governmental tyranny.

Another criticism was the lack of protection against unreasonable searches and seizures. The Anti-Federalists argued that without a Bill of Rights, individuals' privacy and property could be violated through arbitrary governmental searches. They also criticised the absence of a right to trial by jury in civil cases and the lack of protection against excessive bail, fines, and cruel and unusual punishments. These criticisms reflected the Anti-Federalists' deep-seated concerns about governmental overreach and the potential erosion of liberties that the founding generation had fought so hard to secure.

Exclusion of Black and Indigenous people

The United States Constitution, signed on September 17, 1787, has been criticised for excluding Black and Indigenous people, women, and other marginalised groups. The Constitution placed most of the actual people of the United States outside the bounds of the body politic and limited their access to political power.

In the US context, the constitutional history of Native peoples has been described as "exclusionary". Most Native peoples rejected the Constitution and the political system it offered them, yet they were nonetheless forcibly included within the nation. The debates and engagement by some Native peoples over the US Constitution during the Founding have been suppressed.

In Australia, the Constitution established in 1901 included two parts that referred to Aboriginal and Torres Strait Islander peoples. Section 51 (xxvi) gave the Commonwealth the power to make laws with respect to "people of any race, other than the aboriginal race in any state, for whom it was deemed necessary to make special laws". Section 127 provided that "in reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted". These sections were altered through a referendum in 1967, which removed the phrase "other than the aboriginal race in any State" from Section 51 (xxvi) and removed Section 127 entirely. However, the Constitution still allows for racial discrimination, as Section 51 (xxvi) remains in place, allowing the government to make laws with respect to "people of any race".

In the US context, the 13th, 14th, and 15th Amendments to the Constitution, passed after the Civil War, abolished slavery and ensured due process, equal protection under the laws, and voting rights for Black men. However, these amendments were opposed by President Andrew Johnson, and the fundamental rights they guaranteed have continued to be threatened. The idea of Critical Race Theory, which argues for a full understanding of the role that race and racial discrimination have played in the development of the Constitution and US laws, has become politicised and controversial.

Ineffective Congress

One of the heaviest criticisms of the proposed US Constitution was the fear that the legislative branch, or Congress, would be ineffective and weak. This concern was a significant point of contention during the debates over the ratification of the Constitution, and it was a key factor that influenced the shape of the final document.

The critics argued that the proposed structure of Congress, with its two chambers—the House of Representatives and the Senate—would lead to a body that was too large and cumbersome to effectively govern the nation. They believed that a large legislative body would be inefficient, slow to act, and prone to deadlock due to the challenges of getting so many members to agree. This criticism was particularly directed at the House of Representatives, which was designed to have a larger number of members compared to the Senate.

The Anti-Federalists, who were opposed to the ratification of the Constitution, argued that the legislative branch should be more powerful and dominant in the government. They believed that a strong legislature was necessary to protect the rights of the people and to ensure that the government was responsive to the needs and desires of the citizens. The Anti-Federalists feared that an ineffective Congress would lead to an overly powerful executive branch, with the President having too much authority and being able to act without sufficient checks and balances.

To address these concerns, the Federalists, who supported the ratification of the Constitution, proposed a number of amendments to the document, which eventually became the Bill of Rights. These amendments were designed to place additional constraints on the power of the federal government, including the

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No protection for voting rights

The absence of voting rights protection in the proposed Constitution was a significant criticism, sparking debate between Federalists and Anti-Federalists. The Anti-Federalists, comprising small farmers, landowners, shopkeepers, and labourers, advocated for a bill of rights to safeguard individual liberties. They argued that the supremacy clause, combined with other clauses, granted the federal government implied powers that could potentially infringe on rights.

The Federalists, on the other hand, rejected the need for a bill of rights. They distinguished between state constitutions and the U.S. Constitution, asserting that the people retained all rights and powers not explicitly granted to the federal government. Federalists maintained that the new federal government had no authority over the freedom of the press or religion, rendering a bill of rights unnecessary. They also cautioned that a historical bill of rights had been ineffective in protecting rights when most needed.

George Mason, an influential Anti-Federalist, proposed the addition of a bill of rights just before the Constitution was signed. However, this proposal was rejected by 10 out of 10 states as unnecessary. The Anti-Federalists' concerns about voting rights protection were not immediately addressed in the Constitution, but they laid the groundwork for future amendments.

Indeed, following the Civil War, the 13th, 14th, and 15th Amendments were adopted to abolish slavery, ensure due process and equal protection under the law, and guarantee voting rights for Black men. These amendments demonstrated a shift towards recognising the importance of protecting voting rights and ensuring that all citizens could participate in the democratic process.

The evolution of the Constitution through amendments highlights the ongoing efforts to address criticisms and strengthen the protection of rights for all Americans.

No guarantee of fundamental rights

The proposed US Constitution of 1787 was criticised for not guaranteeing fundamental rights. The Anti-Federalists, who included small farmers, landowners, shopkeepers, and labourers, wanted power to remain with state and local governments and favoured a bill of rights to safeguard individual liberty. George Mason, for instance, proposed a bill of rights, arguing that it would "give great quiet to the people".

The Federalists, on the other hand, advocated for a strong national government, believing that the people and states automatically kept any powers not given to the federal government. The proposed Constitution created a federal government in which national laws were supreme over state laws and in which the government could act directly upon individuals.

The lack of a bill of rights in the original Constitution meant that it did not enumerate or guarantee certain fundamental rights, such as freedom of speech and religion, freedom from unreasonable government intrusion in the home, and freedom of association and peaceful assembly. These rights were later added to the Constitution in the form of the first ten amendments, known as the Bill of Rights.

In the case of the Indian Constitution, critics have argued that the Fundamental Rights are stated in a "hazy, ambiguous, and vague" manner, with convoluted terminology beyond the comprehension of the average person. The rights are also not inviolable or unchangeable, as they can be limited or removed by Parliament. Furthermore, critics argue that the judiciary, which is charged with defending and upholding fundamental rights, is prohibitively expensive for the average person to access.

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