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US Constitution

Formerly modern
The death of Judge Ruth Bader Ginsburg reveals how outdated the US Constitution is. For a long time it worked well, but now it is exacerbating the crisis.
An analysis by Heinrich Wefing
September 21, 2020, 12:06 pm

A woman dies, after a long, unprecedented life, and suddenly almost everything seems different. The outcome of the U.S. presidential election in six weeks time has become even more uncertain, the future of the abortion law may be in question, the role of the judiciary, perhaps even, if one tries very hard pathos, the future of U.S. democracy.

It is unique, and rather bizarre, what a break the death of Supreme Court Judge Ruth Bader Ginsburg will mean for the United States, what incalculable consequences the death of an 87-year-old lawyer will have. It is difficult to imagine any person in Germany whose death would have such a weight, such consequences for years and decades, as the death of RBG, as she was often called after her initials. One almost has to think of emperors or queens to imagine a comparable situation. The judge is dead, long live the judge! When were there ever spontaneous funeral rallies for a deceased constitutional judge in Karlsruhe?

But this is not only a curiosity, a peculiarity of the political system in the USA. The shock caused by the death of Ruth Bader Ginsburg and the presumably brutal fight for her succession clearly show much deeper problems. It is not Trump alone who has divided the country. Nor is it the extreme polarization that has put the system under such stress that a peaceful transfer of power between the parties no longer seems natural. It is also the antiquated and increasingly dysfunctional nature of the US Constitution that is driving the country deeper and deeper into crisis.

The Constitution was an unprecedented experiment
The US Constitution is very old. It was created in 1787, more than two hundred years ago, when emperors, kings and other princes still ruled everywhere in Europe. The men who wrote the U.S. Constitution (and yes, it was only men, no one even remotely thought of including a woman in the circle of framers) read the fashion philosophers of the time, Rousseau and Montesquieu. There were hardly any role models that the constitutional legislators could fall back on, only a few historical experiences from which they could learn.

The US Constitution was an unprecedented experiment, a bold step into the open, the unknown. A highly risky new creation. Including error, failure and misconstruction.

Given the unprecedented nature of this undertaking, the Constitution has proven itself marvelously. It has survived three centuries, a civil war, two world wars, the industrial revolution and the rise of the USA to world power. In other countries a new constitution is written every few years, the US-American one is still valid. What for a long time was an expression of enormous stability, however, is now increasingly becoming a problem.

This is particularly evident at the electoral college, the electoral body that elects the president. Originally created to cushion overly populist voter impulses and guarantee the delicate balance of power between large and small states, it is now a major distorter of the popular will. It is not the number of votes that a candidate achieves in the whole country that determines the presidency, but the results in some swing states, the states with many swing voters. Some sparsely populated states receive a grotesque weight that can hardly be justified.

The US Constitution tends to solidify
But even the rules for the Supreme Court have, as is now becoming apparent, something antiquated that grunts and creaks visibly. Thus all judges are appointed to the Supreme Court of the United States for life. In 1787, when life expectancy was generally still low, this may have been a halfway manageable period, but there has always been something very dramatic about it: fate decides with all its arbitrariness on the end of a term of office or the appointee himself, not the calendar, the bureaucratically sober course of a period of service.

Of course, the appointment for life is intended to ensure maximum independence for the judge, to relieve him or her of any consideration for a necessary re-election. And it should free them from any gratitude to the president who nominated them. They know that they will still be in office when he writes his memoirs.

But it is precisely this independence that would also secure a ten- or fifteen-year term of office. The judges of the Federal Constitutional Court in Germany are appointed for twelve years, re-election is excluded. That is a long, enormously labor-intensive period. Some people are glad that after the immense burden of the twelve years there is life without a court again.

But above all, no judge ever has to make the always personal and at the same time highly political decision whether he or she wants to leave or stay. This was perhaps the most momentous miscalculation of RBG, that she absolutely wanted to stay at the Supreme Court instead of resigning with dignity after twenty years and giving Barack Obama the opportunity to fill her position.

Power struggle between the two parties
And finally the appointment of the Supreme Court judges. The constitutional fathers of the United States tried for the very first time to bring the idea of separation of powers into a functioning system. They undoubtedly solved many things brilliantly, leaving many things open, many things went wrong. Perhaps the greatest problem with the U.S. Constitution is a lack of imagination. The Framer foresaw the competition between the three powers and their struggle with each other, as well as the eternal struggle between the central government in Washington and the claims to power of the individual states. But no one could have imagined that something like parties could one day emerge whose struggle for power could override and undermine all other conflicting interests.

For this reason, the constitutional legislators trusted that it would suffice for the president to nominate the judges for the Supreme Court and for the Senate, the representative body of the individual states, to give its approval. That seemed enough control. For a long time, this mechanism has indeed proved its worth. But in times of extreme polarization, the U.S. Constitution no longer knows how to guarantee a balance between the parties, ideologies and conflicting power interests.

Of course, all this is also known in the USA. There are countless publications and scientific conferences on the subject, and various lobby groups and interest groups are working on reforms. But in doing so, they encounter a last rule of the historical constitution that is almost impossible to overcome. Out of concern that their laboriously created, unprecedented work could all too easily be dismantled, the Framers have made it almost impossible to change the constitution. Any addition or reform requires a two-thirds majority in the Senate and House of Representatives, plus the approval of three-quarters of all states. Agile goes differently.

Every constitution has to be continually rebalanced between permanence and flexibility. The U.S. Constitution has been very successful for more than two hundred years. But that is no guarantee for eternity. Currently, it tends to solidify. It can do little to counter the increasingly violent polarization in the country.

Translated with www.DeepL.com/Translator (free version)