In this episode, Jay and Luke discuss the importance of a written Constitution. There were multiple impulses that drove Americans to write down a governing instrument. Hailing from the Lockean liberal tradition, they saw government as a contract, which is better enforceable when it is written down. Additionally, the colonists had well-established precedents of formalizing governing institutions, from the Mayflower Compact through the colonial charters and up to the Articles of Confederation. Perhaps most important, since this was to be a republic, where the people ruled, the new government needed public buy-in that required a written document being presented to the citizenry.

Unlike state constitutions, the United States Constitution has changed very little over the decades, in part because it takes a super-majority in Congress and the states to ratify amendments. This has created some anti-republican tendencies in our system. First, there is the matter of “dead-hand control,” whereby the generation that had the greatest say over our government was the ratifying generation, which has been gone for centuries. Second, there is the challenge of working out constitutional controversies or ambiguities outside the amending process, where the super-majority requirements are too onerous to be practical. Here, the Supreme Court — the least democratic of the branches — has stepped into the gap, creating an enormous volume of common law, basically outside the boundaries of public rule.

Ultimately, Jay and Luke conclude that while a written Constitution is preferable to an unwritten one, it has created problems and quirks in our system of government.

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