A Constitution Rich in Costly Mistakes

After reading John’s post about the Constitution’s greatest error, I have decided to put the issue of slavery aside as I respond to Michael Tee’s prompt which asks: how would John and I change the document knowing what we know today? I will discuss other changes and mistakes instead.

My first change is related to slavery indirectly.  It is that the “foreign” commerce clause was intended to allow the imposition of tariff barriers against foreign trade, which is a mistake even in the best of circumstances. It also resulted in many difficult battles where Northern manufacturers wanted to keep competitive goods from overseas out of the country.

Second, the original Constitution, even with the Bill of Rights, did too little to protect individuals against expropriation by state governments.  The closest clause that served that purpose was the contracts clause, which in the end lands little traction. That clause only extended its protection to contracts from retroactive invalidation.

A stronger system of property rights, such as that ushered in by the Privileges or Immunities clause of the Fourteenth Amendment, would have helped.  Indeed it was not only property rights that were hurt, but religion and speech rights too, as each was subject to serious limitations by the states.

Third, the Commerce Clause, in its original sense, did not have the proper negative power—i.e. to block states from interfering with the free flow of goods and services across state lines. That power only came later, after interpretation.  It should have been there from the start.

Fourth, the early decision to create only optional lower federal courts in order to limit the number of appeals to the Supreme Court from within the federal court system was a mistake, as was the failure to provide any clear way by which state court decisions could be reviewed by the Supreme Court.  To be sure, these policies were initially instituted with the intention of giving states power against the federal government.  In the end, though, they caused real uncertainty. Eventually, these problems were cured by interpretation.

Fifth, the system for choosing the president and vice president was a mess. Part of that was undone by the Twelfth Amendment, but part of it was not. The Electoral College was supposed to be a deliberative body, but fortunately, it is now a device for counting electoral votes.

In sum, there were many mistakes in the original Constitution.  Some were corrected by amendment, some by interpretation, and some by war.  But lest one be too harsh, think of all the other constitutions whose embedded defects were far greater than our own.  The key to our constitutional success was the heavy influence that classical liberal theories had in its drafting and early implementation.  Be thankful for large favors.

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