Malcolm Rivera
The United States Constitution has faced a plethora of criticisms since its inception in 1787. The first notable critics of the Constitution were labelled Anti-Federalists, who raised concerns about the work of the Constitutional Convention. Some of the most significant objections included the belief that the replacement of the Articles of Confederation was unnecessary, that a stronger central government would diminish the power of the states, and that the absence of a bill of rights was damning. Over the centuries, other criticisms have emerged, including the Constitution's limited perspective on race, class, gender, and political equality, as well as its compromise on slavery and promotion of the interests of the wealthy.
| Characteristics | Values |
|---|---|
| Failure to address race, class, gender, and political equality | Thurgood Marshall |
| Compromises deprived the Constitution of internal coherence | Michael Klarman |
| Promotion of the interests of the wealthy | Charles Beard |
| Did not originally define who was eligible to vote | N/A |
| Absence of a bill of rights | N/A |
| Taxation and legislative powers | N/A |
| Lack of democracy | N/A |
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What You'll Learn
The Constitution's blindness towards race
The United States Constitution has been criticised since its inception in 1787 for its blindness towards race. The Constitution did not originally define who was eligible to vote, leaving this to the discretion of each state. Consequently, in the early history of the U.S., most states allowed only white male adult property owners to vote. The Constitution also failed to abolish slavery or grant citizenship and voting rights to former slaves until the Reconstruction Amendments were adopted between 1865 and 1870.
The concept of "constitutional colourblindness" has emerged as a legal and philosophical principle suggesting that the Constitution, particularly the Equal Protection Clause of the 14th Amendment, should be interpreted as prohibiting the government from considering race in its laws, policies, or decisions. According to this doctrine, any use of racial classifications, whether intended to benefit or disadvantage certain groups, is viewed as inherently discriminatory and thus unconstitutional.
However, critics of constitutional colourblindness argue that it ignores the enduring impact of historical and systemic racial discrimination. They contend that race-conscious policies, such as affirmative action, are necessary to address the persistent inequalities that continue to affect marginalised communities. According to this view, treating everyone equally without acknowledging racial disparities perpetuates existing inequalities rather than correcting them.
The principle of constitutional colourblindness has been influential in several major Supreme Court cases involving race and equal protection. For example, in Regents of the University of California v. Bakke (1978), the Court held that while racial quotas in college admissions were unconstitutional, race could still be considered as one factor among others in a holistic admissions process.
In conclusion, while the Constitution's blindness towards race has been criticised, the interpretation of this blindness as constitutional colourblindness has also been controversial, with critics arguing that it fails to address systemic racial inequalities.
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Class-based bias
The United States Constitution has faced various criticisms since its inception in 1787. One of the key criticisms is that it exhibits a class-based bias, favouring the interests of the wealthy over the landless, debtors, and labourers. This critique was popularised by legal and constitutional historian Charles Beard in 1921, who argued that the Constitution promoted the interests of property owners, creditors, and employers at the expense of other social classes.
This criticism stems from the historical context in which the Constitution was drafted, where only white male adult property owners could vote in most states, with the exception of New Jersey, which allowed universal suffrage. The Constitution's failure to explicitly define voting eligibility left it up to individual states to determine who was eligible, perpetuating the exclusion of those without property.
The Anti-Federalists, a group opposing the Constitution, raised concerns about the potential for the Constitution to give rise to a privileged aristocracy and obliterate the power of the states. They argued that the new government would concentrate power in the hands of a few, creating a system akin to monarchy and aristocracy, and eroding democratic principles.
Furthermore, the Anti-Federalists criticised the Constitution for granting the federal government too much power over taxation and legislation, which they believed would make the state governments dependent on the will of the general government. This concentration of power, they argued, would ultimately disadvantage those who were not property owners or members of the aristocracy.
The criticism of class-based bias in the Constitution highlights the document's inherent biases and its failure to adequately address issues of political and economic equality. It underscores the ongoing struggle for equal representation and social justice for all Americans, regardless of class, race, or gender.
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Gender inequality
The United States Constitution has faced criticism for its inherent negative perspectives on gender equality. The original text of the Constitution did not define who was eligible to vote, leaving this decision to the states. As a result, in the early history of the U.S., most states allowed only white male adult property owners to vote. It was not until the adoption of the Reconstruction Amendments between 1865 and 1870, following the American Civil War, that the Constitution abolished slavery and granted citizenship and voting rights to former slaves. However, these amendments did not include a specific prohibition on discrimination in voting based on sex. It was not until the Nineteenth Amendment was ratified in 1920 that the Constitution prohibited any United States citizen from being denied the right to vote based on sex.
The Fourteenth Amendment, originally intended to ensure racial equality after the Civil War, has also been used to address gender discrimination through its equal protection clause. Landmark Supreme Court cases, such as Reed v. Reed and United States v. Virginia, have struck down laws and policies that discriminate based on gender using "intermediate scrutiny." While the Fourteenth Amendment has been instrumental in promoting gender equality, some argue for broader interpretations to ensure equal rights for all.
Despite these amendments, gender inequalities persist in the United States and around the world. Women continue to face discrimination in various areas, including the economy, education, and political representation. For example, globally, women earn 24% less than men, and 104 countries prohibit women's employment in specific jobs. In addition, gender-based violence affects women in every country, and many countries lack laws to protect women from sexual harassment in the workplace.
The lack of explicit protections for gender equality in constitutions can hinder progress towards equality. However, some countries have made significant gains in this area. For example, in Nepal, the constitution's gender equality provision provided the basis for a new law prohibiting marital rape. In Zimbabwe and Tanzania, courts found that setting lower marriage ages for girls than for boys was unconstitutional. These examples demonstrate that constitutions can play a crucial role in advancing gender equality and addressing discrimination.
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Political inequality
The Constitution's lack of explicit protections for certain groups has contributed to political inequality. For example, Justice Thurgood Marshall criticised the Constitution's blindness toward race in a 1987 speech, questioning the appropriateness of celebrating its bicentennial without reservations. Additionally, legal and constitutional historian Charles Beard criticised the Constitution for promoting the interests of the wealthy, including property owners, creditors, and employers, while neglecting the landless, debtors, and labourers.
The interaction between economic and political inequality further exacerbates the issue. Economic inequality can undermine liberal democracy and limit social mobility. When individuals' life chances are determined primarily by parental wealth, it contradicts the liberal-democratic commitment to individual freedom and autonomy. High levels of income and wealth inequality can enable certain citizens to exert disproportionate influence over political institutions, perpetuating policies that benefit themselves and disadvantaging those with less economic power. This dynamic can fuel populist resentment and threaten the foundations of liberal democracy, including commitments to race and gender equality.
Furthermore, the selection process for political elites can be influenced by economic advantage, perpetuating economic and political inequality. While strict hereditary selection has declined in political systems, family and social connections can still play a role in certain contexts. This interaction between economic inequality and political power dynamics undermines the ideal of political equality, which entails open opportunities for all members of a political community to participate actively.
To address political inequality, it is crucial to recognise the voice and agency of disadvantaged groups. Civil society organisations have been criticised for failing to adequately represent those they seek to represent. Connecting the demand for equality with constitutional change can seem challenging, but historically, social progress has been linked to the ability of disadvantaged groups to challenge the interests of the rich. Constitutional factors have been implicated in the extreme levels of inequality in countries like the US and the UK, underscoring the need for democratic and constitutional reform to address these disparities.
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Lack of internal coherence
The United States Constitution has faced various criticisms since its inception in 1787. One of the criticisms levelled at the Constitution is its lack of internal coherence. This criticism argues that the compromises made during the Constitutional Convention, particularly between small and large states, and between slave and free states, led to a lack of cohesion within the document.
Michael Klarman, a legal scholar, highlights that the Constitution's adoption was highly contingent on these compromises, and as a result, it lacks a unified and coherent structure. The compromises made during the Constitutional Convention produced path dependencies, leading to highly contingent resolutions that prioritised consensus over coherence.
An example of this lack of internal coherence is the contradiction between guaranteeing liberty and justice for all, while simultaneously denying these rights to people of colour, specifically African Americans. This contradiction, arising from the compromise between free and slave states, is a fundamental incoherence within the Constitution.
Another instance of incoherence is the Constitution's original failure to define voter eligibility criteria, leaving it to individual states to determine. This lack of a uniform standard resulted in inconsistencies across states, with most states restricting voting rights to white male adult property owners, while New Jersey allowed women to vote on the same basis as men.
The lack of internal coherence in the Constitution has been a significant point of critique, highlighting how the compromises made during its drafting process led to a document that appears to contradict itself on fundamental issues of liberty, justice, and equality.
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Frequently asked questions
The US Constitution has been criticised for its negative perspectives on race and class. For instance, it did not abolish slavery or give citizenship and voting rights to former slaves until the Reconstruction Amendments were adopted between 1865 and 1870. Legal historian Charles Beard also criticised the Constitution for promoting the interests of the wealthy.
Critics of the Constitution, known as Anti-Federalists, argued that a stronger central government would obliterate the states and that a large, extended republic was not possible. They also believed that the new government would give rise to a privileged aristocracy.
Anti-Federalists criticised the US Constitution for its absence of a bill of rights. While the First Amendment, added in 1791, prohibits Congress from obstructing certain individual freedoms, it did not originally define who was eligible to vote, leaving this to the discretion of each state.
