the US Constitution has never reached beta and is still in QA

bill of rights [archives.gov]
posted by HearHere at 1:46 AM on April 8 [4 favorites]

As an outsider the whole pardon and executive order things seem so insane and open to abuse to me, no matter who the incumbent is. The electoral college and system of tame Supreme Court nominations also. Oh yeah, and the legal and accepted gerrymandering.
posted by GallonOfAlan at 3:55 AM on April 8 [18 favorites]

Yeah. To contrast, the Finnish president is the leader of foreign policy and the commander in chief of the armed forces, can do a one-time delay/veto of new legislation (sending it back to the parliament), and rubberstamps certain high office holders, as presented by various ministries. And... that's about it. Thank God for that.

No weird pardons, no executive orders. Changes of president also very much do not involve massive personnel replacements across government and civil services.
posted by jklaiho at 4:11 AM on April 8 [5 favorites]

CVE-1789-0304: (detail) System currently undergoing unplanned online FIZZ testing.

Coverage-guided fuzzing focuses on the source code while the app is running, probing it with random input in an effort to uncover bugs. New tests are constantly being generated and the goal is to get the app to crash.
posted by sammyo at 4:40 AM on April 8 [4 favorites]

Changes of president also very much do not involve massive personnel replacements across government and civil services.

Legally, changes in US Presidential administrations aren’t supposed to either….
posted by eviemath at 4:42 AM on April 8 [22 favorites]

Yes, rich people have long known that "unenforceable" is equivalent to "legal," so when you elect someone so selfish that all American ideals are just a joke you end up with a black comedy.
posted by rikschell at 4:48 AM on April 8 [13 favorites]

Look, there is no secure system when the judicial supply chain is vulnerable. Just because most people couldn't imagine spending the energy over decades to compromise decision making infrastructure at the circuit level doesn't mean a well funded conspiracy isn't out there quietly fabricating backdoored judicial hardware and installing it in every mundane municipal platform. Because it happened before fabrication at the law school privilege and funding microcode layer!

Also Nazis.
posted by Lenie Clarke at 4:55 AM on April 8 [11 favorites]

In 2004, Ukraine was as ratfucked as the US is today: 50-50 polarization, around partisan and sectarian (and geographic and economic) fault lines. The polarization was color coded too: blue versus orange.

Two things happened: Putin's arrogant treatment of the blue (pro-East) side was so over the top that they defected and most will never admit they ever were fully blue. (Reminder: even in 2022, there was a blue adjacent side, and it's the side that Zelensky carried to get elected. He's a Russian speaking eastern Rust Belt Ukrainian.)

But also, Ukraine has a parliamentary constitution. Defecting to another party is much easier for people's sense of identity. And when the shit really hits the fan in a country with a parliament, there's a general strike of a few days, forcing a snap by-election. Then a whole new parliament and a new head of government. That's the out that Ukraine had and the US does not.

The US and Brazil both have rigid constitutional calendars because both of them started out too large to organize snap by-elections on horseback. And now both are well and truly rat-fucked. I live in Boston, where I regularly encounter Bolsonaro-MBGA Brazillians, and they're harder to hate because they don't display outright malice (in front of me, anyway), and because Lula actually is guilty of the leftish excess things Biden was accused of.

We need a parliament. THere's a new book out, Parliamentary America, and it's on my reading list.
posted by ocschwar at 5:43 AM on April 8 [6 favorites]

“As an outsider the whole pardon and executive order things seem so insane and open to abuse to me, no matter who the incumbent is.”

This is kind of just buying into Trump’s framing of executive orders. They aren’t some magical thing, they’re just a memo from the head of the executive branch to the executive branch about how to executive. That he does more of them, promotes more of them, and they are all shitty says more about him than about them.
posted by Captaintripps at 5:53 AM on April 8 [10 favorites]

Changes of president also very much do not involve massive personnel replacements across government and civil services.

Up until a few years ago, this was true in the US as well - we have a nonpartisan civil service, dating back to the Pendleton Act. Normally there would be a turnover of maybe 4000 positions (about 1200 requiring Senate confirmation, generally ambassadors and high-level cabinet secretaries, assistant secretaries, etc). Considering there are over 2 million civilian federal employees that is almost nothing.

That is kind of the whole idea - normally the people rotating in and out are the very top-level policy people, the bulk of the workforce stays in place for obvious reasons.

Of course DOGE has pretty much put an end to that concept.
posted by photo guy at 5:59 AM on April 8 [15 favorites]

I don't see the point of the computer schtick.
posted by NotLost at 6:37 AM on April 8 [1 favorite]

There is a privilege escalation exploit in the US constitution.

Start with US president, a simple majority of both house and senate, one US state house and governor, and a few 100 loyal (to you) citizens of that state.

As the US SCOTUS could in theory write new rules saying "this is dumb, stop it", start by stacking the US SCOTUS with 10 or so new members. This requires a simple majority of the US house, US Senate and the US president and willingness to remove the filibuster rule. But this is just an option. The real meat starts next.

Agreement of the state, plus a simple majority of the house and senate, allows you to subdivide a US state. Create as N states each with at least 8 people; they elect 2 senators, 1 congresscritter, 1 governor, 1 member of the state assembly, and 3 electoral college representatives. (practically you'll want a few extra bodies as spares).

The total number of congressional seats is fixed, so these additional seats consume some of the 438 existing seats. The Senate, however, grows. At N=300 or so you have an unbreakable 2/3 majority of both house and senate using less than 3000 loyalists from your micro-states.

At this point you are free to call a constitutional convention and rewrite the constitution, or just propose and pass amendments (you control 300/350 US states) at-will.

Anyhow, this thought experiment really convinced me that constitutions are just pieces of paper and the social agreement to "play fair" is what keeps things working.
posted by NotAYakk at 6:50 AM on April 8 [6 favorites]

We need a parliament. THere's a new book out, Parliamentary America, and it's on my reading list.

Uk had/has a mini-Trump named Boris Johnson and he tried to hack Parliament. He wasn't completely successful but that may be more luck and some brave opponents. The conclusion many made is that what was needed was a written constitution.

Sure, a system of government that relies only on people behaving responsibly has a lot of room for failure. But on the other hand, if everyone at the top decides to behave irresponsibly, including those meant to enforce the infractions - then there does not exist a system of government that can withstand that.
posted by vacapinta at 6:56 AM on April 8 [6 favorites]

But on the other hand, if everyone at the top decides to behave irresponsibly, including those meant to enforce the infractions - then there does not exist a system of government that can withstand that.

That's the thing: the Ukrainian system didn't withstand that. It got replaced wholesale. Twice.
posted by ocschwar at 7:14 AM on April 8 [2 favorites]

There is a privilege escalation exploit in the US constitution.


Have you tried turning it on and off?
posted by ocschwar at 7:15 AM on April 8 [3 favorites]

Micheal Badnarick isn't gonna be a popular thinker for this website but he did have an observation the blue should think about.

Calling for a new constitution isn't gonna be the new, great, fresh start people are seeking. Imagine the influence/protection large corps and the ultra wealthy will obtain protection under a new constitution. Micheal didn't mention the influence of the owners of the digital infrastructure on such a process but add that to such a process.

So ya all want the reboot of Constitution with money and social media with their thumb on the scale of creating a new baseline law?
posted by rough ashlar at 7:18 AM on April 8 [5 favorites]

The conclusion many made is that what was needed was a written constitution.

America's written constitution specifies stuff that courts have long since reasoned away as "nonjusticiable" or "a political question" and therefore unenforceable by courts. If courts look at the written constitution and shrug with a "not my problem" then it just ends up being a negotiation between the remaining constitutional actors, and if they don't bother to enforce it either, it's a dead letter.
posted by BungaDunga at 7:20 AM on April 8 [1 favorite]

The UK system is a poor example because they’ve effectively devolved into a two party system, and it’s the two party system that’s really the problem because neither party can be held accountable.

A better example of a functioning parliamentary system is the Dutch system, which has around 18 parties, around 15 of which have seats in their equivalent of the House. If the green-left party disappoints you then there’s always the labor party, or the socialist party, or the party for animals and the environment, or the democratic party, or the pro-EU party, or the super progressive and socially liberal party, etc.

Now in the last election the “party” (it only has one registered member) that got the most votes is an anti-muslim party, because Europeans are also exposed to the US’s right-wing propaganda machine and create copies in the local language, but because there are so many parties it’s nearly impossible to get enough votes to completely capture the government, and the other parties formed a coalition to prevent him from becoming prime minister. So there’s that.

The key, from what I’ve seen, is a combination of having lots of small parties, and having a strident left actually proudly countering the bigots and neoliberals.
posted by antinomia at 7:24 AM on April 8 [2 favorites]

the other thing is that right now, the problem isn't that the Constitutional actors are all bastards- though they are- but that the non-presidential ones are all refusing to assert any of their enumerated powers. It's not so much that they're all acting in bad faith (they are) but that they're not acting at all. Congress could try to revoke Trump's "emergency order" enabling his mad tariff scheme, but just... isn't. And so on.

It's not a vulnerability if the actual mechanisms aren't being tested because everyone involved is pulling in the same direction.
posted by BungaDunga at 7:25 AM on April 8 [6 favorites]

Europeans are also exposed to the US’s right-wing propaganda machine and create copies in the local language

look, this is obviously true, but Europe is more than capable of purely home-grown xenophobia that would not evaporate should America sink into the sea
posted by BungaDunga at 7:26 AM on April 8 [8 favorites]

rough ashlar: "So ya all want the reboot of Constitution with money and social media with their thumb on the scale of creating a new baseline law?"

You act as if this wasn't the case in 1776.
posted by 922257033c4a0f3cecdbd819a46d626999d1af4a at 7:38 AM on April 8 [3 favorites]

As foreseen by Gödel
posted by wanderlost at 7:55 AM on April 8

Previously: No More Presidents (SLYT, 36 min)

Look, there is no secure system when the judicial supply chain is vulnerable.

The fix is to get rid of lifetime appointments and have each presidential term replace the most senior SCOTUS Justice. (Work out the details and exceptional cases, blah blah blah.) Adds much more stability and predictability but maintains the long term appointment.

And get rid of the electoral college.

And give me a pony, while I'm wishing for things.
posted by AlSweigart at 8:21 AM on April 8 [4 favorites]

You act as if this wasn't the case in 1776

And those documents are not the constitution we operate under.

Look, there is no secure system when the judicial supply chain is vulnerable.

yet there is no movement beyond a couple of people who do court watching and then file judicial conduct complaints or bar grievances. The citizens are failing here.
posted by rough ashlar at 8:34 AM on April 8

Congress could try to revoke Trump's "emergency order" enabling his mad tariff scheme, but just... isn't. And so on.

The US Government has fallen to a death cult. It took a long time for the death cult to gain supremacy but now that they are there they are going to Death Cult. Violence from the outside of the cult is the usual remedy.

All systems of government are vulnerable to take over by a cult.

Warning: simple solution that won't work because it would require rainbow farting unicorns. A few hundred people could turn this around right now. Impeach TFG. Move on to members of the Supreme Court and other lackeys of the cult. Take back the power bestowed by the Constitution. Weather the crisis. It won't happen because the few hundred people are also cult members and/or are comfortable with the current structure.

I really hope when the violence starts it's turned inward and not outward. Canada can weather the coming great depression. It'll be a lot harder to weather an active Pax Americana.
posted by Mitheral at 8:48 AM on April 8 [1 favorite]

GallonOfAlan One thing to remember is that the US Founders were themselves aristocrats with a deep mistrust of democracy, and they had no other contemporary democracies to look to for guidence.

So they copy/pasted several monarchal powers to the President, including pardons. It was, in retrospect, a truly awful idea, but at the time it didn't seem too incredibly out there. At core they were hierarchal thinkers, they assumed SOMEONE had to be in charge, and that someone should be the final appeal for people who were mistreated by the justice system.

We copy/pasted that down to the state governors as well, on much the same chain of faulty logic.

You'll note Parlimentary systems still suffer from much the same "SOMEONE has to be in charge" thinking and have a Prime Minister who is, in theory, the person in charge.

We don't, in fact, need someone to be in charge. The idea is rooted in faulty assumptions. But boy is it difficult to get people to accept that.

How about a pardon board made up of a hundred people chosen by lottery serving a single four year term? It's probably the best possible solution, but it won't get anyone approving of it.

Why have a President, or Prime Minister? Or, rather, why not have five? Or ten? Spread the power around so a single demogogue can't kick the whole thing apart.

Heck, for that matter why do we have a single dictatorial judge running courtrooms? We've seen many incidents of this causing serious problems, we even do use the idea of three judge panels for certain levels of appeal, but the idea of three (or five, or whatever) judge panels for regular trials seems almost unthinkable, how could it possibly work without someone in charge?
posted by sotonohito at 8:54 AM on April 8 [2 favorites]

two things come to mind:

1. America is different than everywhere else because America is more powerful than everywhere else, not just in terms of economic might (fast crashing and burning, it seems) but also military might. And for that matter, cultural might (ie: Hollywood still imposes its fantasies on pretty much all of the so-called Western World, and much of the rest of it as well). And when you have this much raw POWER in play, I think it's naive to think everybody is just going to play fair. The stakes are simply, profoundly too high So it's hardball all the way. And the closer you get to the highest seats of power (President in particular) the harder it gets.

So in light of all that ...

2. Politics is not the answer. It's part of the answer, for sure. But even the most streamlined and functional democracy falls apart if there's a fundamental lack of trust at the heart of things. Which seems the situation lately. Whatever the fix is for the great American experiment, it starts with the various sides and extremes finding a way to successfully communicate with each other -- the vast majority of them anyway.

If it's any consolation, Marshall McLuhan saw all this coming over half a century ago. Not that he offered much in the way of remedy beyond perhaps placing way more value on our so-called artists, the folks whose job description is to find a way to both live in the present and (somehow, some way) find a way to tell the truth about it ... by any means necessary.
posted by philip-random at 9:03 AM on April 8 [1 favorite]

Isn't the real flaw in the Constitution (and really all human systems of organization) that there's usually a presumption of rational/correct actors. People would never do that because it would be an outrageous violation of honor/decorum, so there's no need for guardrails lest you accuse your colleagues of not being proper gentlemen.

Works until the knives come out
posted by drewbage1847 at 9:23 AM on April 8 [2 favorites]

Give the judicial branch its own military. Problem solved. No way that could go wrong.
posted by charred husk at 9:40 AM on April 8 [2 favorites]

Isn't the real flaw in the Constitution (and really all human systems of organization) that there's usually a presumption of rational/correct actors. People would never do that because it would be an outrageous violation of honor/decorum, so there's no need for guardrails lest you accuse your colleagues of not being proper gentlemen.

I think it's important to keep in mind that the "proper gentlemen" would -- if really offended by someone's behaviour -- challenge them to a duel. This is what's wrong now. Chuck Schumer didn't sent a second to Mitch McConnell's second to challenge him for the temerity to hold up Obama's nominee for the Supreme Court.
posted by mikelieman at 9:41 AM on April 8 [4 favorites]

The 18th and 19th Century equivalent of "Everyone has a plan until they get punched in the face"
posted by drewbage1847 at 9:47 AM on April 8

Give the judicial branch its own military. Problem solved. No way that could go wrong.

Looks like lots of federal departments have inspector generals including the Department of Education (which may or may not even exist anymore) that are in charge of their own armed special agents with arrest powers.
posted by furiouscupcake at 10:14 AM on April 8

Building a democracy around a set of assumptions of behavior proves to be problematic? Such thinking is admirable, but if there was ever a need for pragmatism, this was it.

It's time to take the Founding Fathers down from the pedestals we put them on and acknowledge their limited imaginations.
posted by tommasz at 10:24 AM on April 8

I think the Constitution's version number should be 2.27. It's definitely not 1.0.
posted by I-Write-Essays at 11:19 AM on April 8 [4 favorites]

As an outsider the whole pardon and executive order things seem so insane and open to abuse to me, no matter who the incumbent is

I can go for calling the pardon power an “insane” feature of the constitution because it’s a privilege of a king that we gave to the President for some reason, but EOs are more of an evolved/customary thing. If you trace that problem to the root I think you end up looking at a legislative branch that is slow-moving by design and by custom, and that has only gotten more so, and the practical power vacuum that results being filled by the executive in the absence of hardcoded limits on its role beyond an ejection lever in the hands of… the legislative branch.

That and of course the branch that commands the military and the largest swath of law enforcement is ultimately the most liable to abuse its power.
posted by atoxyl at 11:41 AM on April 8 [1 favorite]

As an outsider the whole pardon and executive order things seem so insane and open to abuse to me, no matter who the incumbent is

A lot of the things Trump has claimed he can do by executive order, he probably can't on a common sense reading of the Constitution. The president has a constitutional duty to "faithfully execute the law" and the law is supposed to be made by Congress. Executive Orders are supposed to be about details of how the agencies and departments go about implementing the law. Which can have significant policy implications, like "we're going to pursue maximal [or minimal] penalties for any violations of xyz," but fundamentally is supposed to still be constrained by the laws and Constitution.

The problem we're having now is that someone needs to stop him when he claims he can do illegal things by executive order, and especially when he starts actually doing those things. Executive orders can't actually, legally close an agency like USAID, but he does control the locks on the doors and the staff computer accounts. Once he locks everyone out, the fact the preceding "order" isn't legal only matters so much - what we really need is someone to open the place back up and/or punish those who conducted the lockout. The courts are trying, at least those that have what I consider common sense, but Congress has been asleep at the wheel or cheering him on.

There may be too much executive power in our constitutional system, I haven't thought it through enough to take a firm position. But our biggest problem now is that we gave the keys to a crook. He doesn't care what the legal limits on his power are or are supposed to be.
posted by actuallyquite at 2:38 PM on April 8 [3 favorites]

The French, around the time of crafting the Second Republic, recognised that the American system granted too much power to the executive, and when they foolishly went ahead anyway, Napolean III seized control of the government and formed the Second French Empire.
posted by I-Write-Essays at 2:52 PM on April 8 [1 favorite]

This software vulnerability analogy reminded me of this perspective I was lucky to catch recently from Ada Palmer on a podcast (~58:00-1:04:00) about the 15th C. papal election LARP she runs every year. For context, she was talking about the decision she made in the future setting of Too Like The Lightning to have the United States collapse and one way to look at its role in world history.

This is not me prophesying that America is about to melt and fall away but in general the importance and value of things that exist for a while but not forever. I think a lot of the time people will start a club at their undergrad institution, it's great and they throw their energy into it and it makes lots of things and then they graduate and they hear four years after they left that that club shut down again. And they feel like oh all of that was terrible and wasted and it's like no, you created all of the amazing things that that organization did while it existed which are rippling out forever.

One of the things about Terra Ignota's relationship with the U.S. is that it posits that the American experiment, which is invoked in that Renunciation Day speech in book one, pioneered a lot of really great steps toward liberty but the world kept moving. And more steps toward liberty were taken later and a thing that was new and innovative drifted to being older and shakier because (and this is something I often say to students who bring this up) America is still running the alpha release software of modern democracy, right? And we've had like fourteen updates and they were pretty small ones.

Software gets hackable over time; it's absolutely expected that our electoral system, not having been cleaned up very much over time, will get hacked. Any game gets gamed, anything humans create humans figure out ways to hack it. This is why the younger democracies that have things like range voting and quota systems for party balance, etc. were made in response to seeing the alpha release of the software get hacked and turn into a two party system almost immediately and they were like “Let's not do that, we'll do other stuff.”

It is absolutely expected for this to be a groaning-under-its-own-weight-at-this-stage system because it hasn't had a deep software upgrade in ages. And either it will, and will integrate many of the wonderful improvements to protect democracy that have been made by other democracies which were in turn modeled on it, or it won't. [And I chose] the interesting path in which I imagine a future in which it didn't and therefore it lasted X amount of time and after lasting X amount of time its growing pains got worse and worse.

[Back in 2006] I sat down to write the chapter that I had always intended to be there in which the narrator reflects on the end of America (I will spoil this because it's not plot relevant, it's the character talking about history). It begins by saying, “The old United States of America reminds me very much of Terra the moon baby,” and talks about this figure who was the first child born [from] a pregnancy in space. Because there were complications with the mother's health and she wasn't expected to become pregnant in space [the] child went through embryonic development in the microgravity of the Moon [and] came back back to Earth and [was] known as Terra the moon baby.

[She] lived her whole life as a celebrity but also as a science experiment that everyone studied to learn about what space would do, and as the narrator says lived a short life due to the complications from being born on the threshold of a new thing and therefore lived a shorter life than those who are born in traditional ways. But every illness that she had, we studied and we learned from it and [later people reaching farther out into those frontiers in space] were able to thrive thanks to learning from the growing pains and dying pains of the one who was first born upon the threshold. [...] That is a way of imagining that even if America dies, America's death makes great contributions because we learn from every step; the planet–humanity as a whole– learns from every step and every other democracy on Earth is getting stronger right now. [...] Every growing pain that that firstborn goes through teaches everybody how to anticipate that problem [and] treat that problem, and every child born past that threshold will therefore be able to thrive better as a consequence. That's how there's hope even in the very worst parts of seeing America in its very natural throes of illness because it was born on the threshold of something new.

Hearing that shift of perspective has been one of the things that's kept me from doom spiraling, even if it doesn't help us living now in the present.
posted by coolname at 3:12 PM on April 8 [2 favorites]

It is absolutely expected for this to be a groaning-under-its-own-weight-at-this-stage system because it hasn't had a deep software upgrade in ages.

The American Constitution is extremely difficult to amend & it was made that way because elite slaveholders didn't want to make it easy to lose their slaves. Unfortunately, too many Americans think that the difficulty of amending the Constitution is because the Framers were demigods & nothing that they ever did should be questioned.

I'm not sure we could have abolished slavery through Constitutional means if the slave states hadn't chosen to secede and make war against the rest of the Union.
posted by jonp72 at 3:51 PM on April 8

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