Write a Constitution

An Anti-Constitution

In a recent SNL monologue, Chris Rock criticized what I consider the worst part of not only the US Constitution, but national constitutions generally: the absence of the right of recall. He even made my favorite argument: employees (he used the example of a chef that was making people vomit) are never guaranteed power in the private sector. Athletes under contract can be benched at will; a CEO can be dismissed by a simple majority of the same board that elected him. Granted, Westminster parliaments can vote no confidence, but that is itself a power of a body not subject to recall (compare to boards of directors, which serve at the pleasure of shareholders).

Game theoretically, the case for shorter terms is compelling. The governor’s dilemma: to self-deal and lose re-election or to be a good boy and settle for compensation for multiple terms. In the extreme case of a life-term, there’s no incentive to be a good boy, which is why justices brag about their utter lack of concern for the consequences of their decisions (as if this silly imaginary, the law, were more important than reality). Generally, the incentive to self-deal (and thus the extortion premium, as I call it, that an official would have to be paid annually in excess of compensation in order to convince them to be a good boy) is proportional to the term length. Thus, it is no surprise that the country with the shortest term lengths (New Zealand) is also the one with the lowest perceived corruption.

Opposed to this logic there is of course the old “fickle mob” argument. What is so remarkable about it is that it persists despite the fact that, even if one accepts its hateful premise, it simply makes no sense. How exactly does delaying the fickle mob promote stability? Doesn’t it just turn what might be gradual (if too rapid) change into abrupt quadrennial shocks?

But if the shorter the better, why not a 0-year term? Other than tradition and constitutions historically being written not by the people but by aristocracies that grant only as much democracy as they are compelled to, I blame it on an inability to think dialectically: a sufficient quantitative change begets a qualitative change. So while holding an election every second would be absurd, a transformation of the vote, from something transitory to something that lasts until the voter changes it (or dies), would not be. That is, we should vote the way we currently declare party affiliation (except that we should be able to approve as many parties or candidates as we wish), and the representative should change the second the party or candidate with the most votes changes (at the very least, a recall election should be triggered in that event). I call this permanent approval voting, and I reckon statutory law could be chosen whole by a similar process.

Parliament, I think, serves no purpose under permanent approval voting, for approval voting elects compromise candidates (and, when applied to law, compromise law). I anticipate the criticism that even just statutory law-making is too much work to be done by the people, but consider that the current volume and instability of statutory law is itself a consequence of the x-year term: because the executive cannot be replaced promptly and easily, it is necessary to micro-manage him; and the changing circumstances that warrant changes in administrative law and executive action also warrant changes in this statutory micro-management. Even in Westminster systems, how much law exists as statutory law because Parliament exists as opposed to the other way around? I dare say there is nothing statutory that could not be safely abolished or absorbed into administrative law once the right of recall is won.

As for the government proper, let it be unitary, every officer, including judges, serving directly or indirectly at the President’s pleasure. Too much power for one man? Impossible, for all power in the hands of a man who may be replaced at will is effectively in the hands of those empowered to replace him (i.e. the people).

Then there is the amendment dilemma: the easier it is to amend the constitution, the greater the threat of tyranny of the majority; the harder it is, the greater the threat of tyranny of the dead. The American delusion is that there is a Goldilocks zone, the two-thirds supermajority. But there is no Goldilocks zone; decreasing one threat equally increases the other. So there should only be fully entrenched clauses and fully non-entrenched clauses. And as a living majority is at least as willing and able to decide what is just for the living as a dead “minority of the opulent”, nothing should be entrenched. The necessary and sufficient bulwark against tyranny of the majority is the right of revolt, which cannot be granted by a constitution, but must be asserted. A minority that says “no justice, no peace” and means it incentivizes the majority to deliver justice. A pacifist minority doesn’t deserve justice; or, what’s the same, it is just to abuse them.

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