Founding Flaws: Democracy's Disconnect In The Constitution

The US Constitution is often considered the foundation of democracy in the Western world. However, many of its features are undemocratic in nature. The constitution was drafted by elites in secret, and the ratification procedure violated the Articles of Confederation, which required changes to be approved by all states. The constitution failed to guarantee suffrage, leaving voting qualifications to the states, which excluded women, African Americans, and Native Americans. The Wyoming problem further highlights the undemocratic nature of the constitution, with Wyomingites having 70 times more representation in the Senate than Californians. The constitution also includes undemocratic elements such as the filibuster, the Electoral College, and the fixed-term presidency, which can result in incompetent leaders remaining in power. Constitutional theorists have not adequately addressed the exclusion of racial minorities and women, and the document has been criticised for its compromise on slavery and the Fugitive Slave Laws.

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The document was created by elites, in secret, with undemocratic strategies

The US Constitution is often regarded as the foundation and epitome of democracy. However, it is important to recognise that the document was created by elites, in secret, with undemocratic strategies.

The authors of the US Constitution were the elites of their time. They met in secret, quickly abandoning their instructions to revise the Articles of Confederation and instead creating an entirely new constitution. This secrecy helped to prevent potential opposition to the new document. The framers also violated the law of the land at the time by approving a ratification procedure that required only nine states to ratify the new constitution, rather than all states as outlined in the Articles of Confederation.

The Constitution was created without the input or representation of significant portions of the population. Women, African Americans, and Native Americans were excluded from the political process and had no say in the creation of the document. The Constitution also failed to guarantee the right of suffrage, leaving the qualifications of suffrage to the states, many of which limited voting to people who owned property or paid taxes. This meant that the majority of "the people" had no vote and no say in government, even in the House of Representatives, which is supposed to represent the people.

The undemocratic nature of the Constitution has had lasting consequences. Interpreters of the document can either entrench old forms of political exclusion or help equalise rights and status across citizens. The Constitution has been interpreted in ways that reinforce undemocratic conditions and exclude racial minorities, women, and marginalised groups. For example, abortion bans were passed without the formal consent of women, and their views continue to be easily ignored due to their low numbers in decision-making bodies.

The US Constitution, therefore, has been characterised by undemocratic origins and ongoing interpretations that exclude and marginalise certain groups. While the country's institutions have become more democratic over time, those seeking constitutional change must still navigate institutional barriers originally set down in undemocratic conditions.

It failed to guarantee the right of suffrage, excluding women and minorities

The US Constitution has long been considered one of the most revered documents in American politics, seen as the foundation and epitome of democracy. However, it can be argued that the Constitution is undemocratic in nature, particularly in how it failed to guarantee the right of suffrage, excluding women and minorities.

When the Constitution was enacted into law in the late 18th century, the Founders' approach to voting was that each of the states would determine the voter eligibility of their citizens. Suffrage was restricted to European men with property qualifications, and women and African Americans were excluded. This meant that the majority of "the people" had no vote or say in the government, even in the House of Representatives, which is supposed to represent the people.

While the Fifteenth Amendment, ratified in 1870, granted the right to vote for all male citizens regardless of their race or prior slave status, it did not explicitly address the issue of women's suffrage. In the early 20th century, women could only vote in a handful of states, and it wasn't until the Nineteenth Amendment that women gained the right to vote nationwide.

Furthermore, despite the significant impact of the Fifteenth Amendment, the right to vote was interpreted narrowly by the Supreme Court in the late 19th and mid-20th centuries. Discriminatory practices and laws, such as poll taxes and literacy tests, and the activities of the Ku Klux Klan, effectively prevented many African Americans in the Southern states from exercising their constitutional rights.

The Constitution's failure to guarantee the right of suffrage for all citizens, regardless of gender, race, or other factors, contributed to the undemocratic nature of the document, as it excluded significant portions of the population from the political process. This legacy of exclusion and the discretionary power given to states to determine voter eligibility have had long-lasting impacts on the country's democratic development.

It sanctioned morally objectionable laws, such as the Fugitive Slave laws

The US Constitution, despite being viewed as the foundation of democracy, is considered by some as an undemocratic document. One of the reasons for this perception is its sanctioning of morally objectionable laws, such as the Fugitive Slave laws, which allowed slaveholders to recapture enslaved people who had escaped.

Article IV, Section 2, Clause 3 of the US Constitution, also known as the "Fugitive Slave Clause," provided the legal basis for the Fugitive Slave Act of 1793 and its subsequent iterations. This clause, proposed by Pierce Butler and Charles Pinckney of South Carolina, did not explicitly mention the word "slave," but had a profound impact on the institution of slavery and the lives of those affected by it.

The Fugitive Slave Clause stated that:

> "No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

This clause effectively nullified state laws that protected free Black individuals and granted slaveholders the right to recapture their enslaved property across state lines. It also denied alleged slaves fair trials, due process, and the right to prove their freedom in court, violating the Fourth, Fifth, Sixth, and Seventh Amendments of the Constitution.

The Fugitive Slave Laws of 1793 and 1850 authorized private individuals, including slave catchers, to "seize or arrest" alleged fugitive slaves without warrants, invading public spaces and private homes in their search. The 1850 law further prohibited the use of the writ of habeas corpus in fugitive slave cases, preventing those accused from challenging their detention and seeking legal recourse.

In conclusion, the US Constitution's inclusion of the Fugitive Slave Clause and its subsequent enforcement through legislation, such as the Fugitive Slave Acts, sanctioned morally objectionable practices that contradicted the very democratic ideals it purported to uphold. The impact of these laws had far-reaching consequences, contributing to the oppression and exploitation of enslaved individuals and perpetuating the institution of slavery in the United States.

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It's difficult to amend, hindering representatives from adopting necessary policies

The United States Constitution is considered the "supreme law of the land", and the government must follow it. The Constitution is a short document, usually fewer than 20 pages in booklet form, and outlines the structure of the government. However, it does not include most of the laws that exist in the United States.

The Constitution has been amended only 27 times since it was drafted in 1787, including the first ten amendments, which were adopted four years later as the Bill of Rights. Amending the Constitution is a challenging and time-consuming process. A proposed amendment must be passed by a two-thirds majority in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures. Once passed, three-fourths of the states must ratify the amendment. This process ensures that any changes to the Constitution are thoroughly considered and widely supported.

However, the difficulty of amending the Constitution can hinder representatives from adopting necessary policies. For example, supporters of congressional term limits and a balanced budget amendment have been unsuccessful in getting their proposed amendments ratified. The close political divide in Congress further complicates the process, as seen in the case of President Joe Biden's Supreme Court reform proposals, which were declared "dead on arrival" in the House by Republican House Speaker Mike Johnson due to the need for constitutional amendments.

The Framers, the men who wrote the Constitution, intended for the amendment process to be difficult to create stability in the nation. They wanted the Constitution to be an "enduring" document that could meet future challenges and crises. However, the process has been criticised as being too difficult, with some arguing that it hinders necessary changes and reforms.

The Constitution has also been criticised for its undemocratic origins and provisions. When the Constitution was being drafted, the Framers met in secret and quickly abandoned their instructions to revise the Articles of Confederation, instead opting to create an entirely new constitution. This allowed them to bypass the requirement that any changes to the Constitution be approved by all states, as they knew this was unlikely to happen. As a result, only nine states were required to ratify the new constitution, demonstrating the undemocratic strategies employed by the Framers.

Furthermore, the Constitution initially excluded women and African Americans from the voting process, as voting was often restricted to those who owned property or paid taxes. This reduced democratic threats to the propertied interests and ensured that the majority of "the people" had no vote or say in the government, even in the House of Representatives.

Interpreters can entrench old forms of political exclusion, exacerbating flaws

The interpretation of the US Constitution has often been criticised as undemocratic, with its interpretation reinforcing old forms of political exclusion and exacerbating flaws. The document has been described as an "impediment" to the country becoming a "truly democratic nation".

The Constitution was created by a small group of elites, who met in secret, and quickly abandoned their instructions to revise the Articles of Confederation, instead opting to create an entirely new constitution. This group knew that getting the required approval of all states was unlikely, so they reduced the number of states needed to ratify the new constitution to nine. This undemocratic process of constitution-making has been criticised as an elitist exercise, with the framers violating the law of the land at the time.

The Constitution has been criticised for its failure to guarantee the right of suffrage, instead leaving the qualifications of suffrage to the states. This implicitly excluded women, African Americans, and Native Americans from voting. It took a century and a half before women were constitutionally guaranteed the right to vote. The Constitution also failed to address regulatory actions, such as those over railroad rates, air safety, food and drugs, banking, and minimum wages, which has prevented representatives from adopting policies necessary for a complex post-agrarian society.

The interpretation of the Constitution has further entrenched political exclusion. For example, in the case of abortion rights, women's exclusion from the political process during the enactment of abortion laws has led to a lack of representation and the ignoring of women's views due to their low numbers in decision-making bodies. The Supreme Court's approach to unenumerated rights, based on "history and tradition", has also been criticised for reinforcing undemocratic conditions and exacerbating flaws.

The Constitution's democratic flaws are serious and well-documented, and it is important for constitutional theorists and interpreters to address and grapple with these issues to move towards a more inclusive and democratic future.

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