There is one great flaw in the constitution. It is, unfortunately, an unavoidable one, but still a flaw it is. It is a flaw that was probably foreseen by some of the founders, but considered unlikely to cause any problems, as they expected succeeding generations to take steps to compensate for it. And, for the most part, that was precisely what happened, at least until sometime int he 20th century, when the flaw began to become more prominent and the weaknesses of the constitution became more evident.

No, I am not speaking of the commerce clause, nor of the general welfare clause, though those two inclusions have allowed a great deal of mischief. Nor am I talking about more obscure omissions, such as clarifying whether ex post facto applies to civil as well as criminal matters, or explicitly including what was smuggled in as "substantive due process" in some proto-libertarian cases in the 19th century. No I am talking about a more fundamental flaw, one inherent in every written constitution, or almost every one. And that is the simple fact that, for a constitution to continue to function, the citizens have to understand the value of their form of government.

It seems self-evident, but you would be amazed how many people seem to forget this fact. They continue to decry this law or that as unconstitutional, all the while overlooking the fact that a majority of their fellow citizens clearly support those unconstitutional provisions. In other words, the simple fact that a majority no longer are what the constitution has to say on a range of topics. And, if a majority does not care, then the constitution simply does not matter.

Let us look at this in the most simple terms. Even if we do not want to just abrogate the constitution, if a substantial majority wants to turn the government into a vehicle for expropriation of wealth and leveling of incomes, the right to amend gives them a simple tool to do just that. They can simply call a convention, cross out everything that prevents them from doing what they wish and vote it into law. But, then again, why even bother? If the majority is large enough, it is far easier to simply ignore the constitution. The courts may object, but without an enforcement arm, their complaints can be ignored the same way they ignore the legislature in Boumedine ("Somehow The Media Missed This", "Confirmation, If It Is True", "I Was Right", "It Doesn't Matter What the Court Says", "Be Careful What You Wish For"), and with public support there is likely to be no outcry in their support. And, after a while, popularity seeking presidents will appoint friendlier justices, and even the courts will come to agree with the public prejudice. Before long, ignoring the constitution, at least on some topics, will have become the de facto law of the land.

Of course, there is a remedy, and one we used for decades, but it is one that is not flashy, does not include dramatic political action, does not create heroes, nor even allow villains, and one that is slow and tedious, and thus unpopular in today's "quick fix" society (See "Why We Need Adults", "The Need for Realism", "Calm Down a Little", "Impatience", "How Not To Improve Elections"). That is showing our fellow citizens that obeying the constitution, even when certain provisions seem to their detriment, is, overall, of greater benefit. What we need to do is undertake the slow, tedious, difficult process of convincing those around us, that it really is in their best interest to preserve the constitution in its original form, to keep those protections the founder provided.

But how to convince them?

As I explained in "A Rational Approach to Punishment", and expanded upon in "The Danger Inherent in Banning "Bad Ideas"", we would all like a system which granted us every favor and imposed every burden on others, but no one would agree to such a system. The best we could hope for is a system which provides each of us with certain basic protections, and then leaves us each free from the interference of others to follow our own dreams.Any alternative creates an asymmetry which cannot be maintained without some form of force, creating winners and losers and creating instability.

For example, let us suppose you want to impose your beliefs on others, specifically ban "unacceptable" language. The problem is, granting everyone the right to ban language they find unacceptable would eventually result in every word being banned. Or, in the alternative, if everyone could modify the list, the final list would be subject to near constant revision. So, under such circumstances, you must create winners and losers, those whose opinions are honored and those whose opinions are not. But the losers in such a system have no reason to agree to such a system. So they must be forced to comply, creating a system under which there is every incentive to use force or deceit to ensure you are the winner and others the losers.

In short, any asymmetrical system, which includes all forms of socialism and other authoritarian systems, will of necessity include some type of oppression and will, by its nature, be inherently unstable. The only system which avoids asymmetry, allowing stable, peaceful coexistence without winners or losers, with all enjoying uniform rights, is the minimal, libertarian system created by the founders*.

In some ways, this reminds me of my argument in "Don't Blame the Politicians", one I made before in "What We Deserve" and elsewhere. We are usually quick to blame politicians for the ills we suffer, but we never ask how they came to office, nor why they think they can do what they do. It is also why I argue against term limits. ( "Why Term Limits Will Fail (And Should)") Yes, politicians often do bad things, yes incumbents are more harmful than first termers, and yes, violations of the constitution cause harm.

But they all exist solely because we, the voters and citizens, do not respect the constitution any more than the politicians. If we did not demand they "do something" even when it is not the purpose of government ("Doing Something"), if we did not demand unconstitutional solutions, if we held them accountable, then they would behave differently. It is only because we reward them for acting, even when they shouldn't, and because we overlook their unconstitutional acts, that we have the politicians and the system that we do.

And that is why I say the solution is not to throw out the politicians we have, but to throw out the voters, or, since we can't really do that, at least re-educate them, teach them once more why the constitution is something they should prize. Once the majority understands that once more, there will be no need for term limits or other reforms, an informed electorate can function without those crutches.

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* There are many other argument, but they deserve an essay of their own. For example, though everyone pushing some form of socialism imagines himself in charge and his prejudices providing the rules, in truth the number of "winners" is many orders of magnitude smaller than the losers under any such system, meaning that the chance a socialist system will be to your liking is much less than any of those on the left imagine. (Though I doubt this truth would surprise many disappointed individuals who backed communist revolutions only to find themselves on the outside once the revolution was over.) Or the argument that,  objectively, the risk adjusted amount you are likely to benefit under an asymmetrical system is far, far less than the risk adjusted amount you are likely to lose. While socialist systems are always sold on the goodies one will receive, or sometimes on the revenge the envious will enjoy, in reality, the cut-off between haves and have-nots is often lower than supporters imagine and they find themselves in the dispossessed rather than the beneficiaries. There are many other arguments, but as I said, that will have to wait for later.

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POSTSCRIPT

With any luck, I will write my analysis of the dangers and drawbacks of an asymmetrical system sometime tomorrow. It is an interesting question, whether or not there is a benefit to assigning unequal rights, and though I come down firmly opposed, it will be informative to look at the specific details.