Arkady
President
Imagine what the Constitution would look like if you rewrote it today, only taking out any verbiage that has been rendered effectively meaningless in practice.
To take the most obvious example, take the bit about Congress having the power to declare war. There are few alive today who remember the last time that happened, and yet we've effectively been in a state of war for much of the time since then. For a long time, there were at least strained attempts to observe proprieties by pointing to other stuff that Congress did, as a way to attribute a use of military force indirectly to Congress even when, as a practical matter, they had no say in it. For example we'd cite a UN or NATO resolution, since those both came out of treaties Congress had signed off on, or we'd point to the 2001 post-9/11 resolution to justify anything that could be treated as an attack on international terrorists. But, these days, even that doesn't seem to apply, since Trump just bombed a facility of a sovereign nation without supporting UN or NATO resolutions, or any Congressional resolution he could plausibly point to as justification. And it appears he'll get away with it. If so, we'll effectively have a system where the president does whatever he'd like with the military.
Or how about the emolument's clause? That is now effectively gone, at least with regard to presidents. For a long time, it was observed fairly strictly. Carter put his peanut farm in a blind trust. Obama donated his Nobel money to charity. Etc. But now it no longer appears to matter. Trump retains control of his businesses and is profiting handsomely from the presidency, as nations curry favor by booking at his for-profit facilities. He's using the presidency to raise the profile of one of those resorts by spending a third of his time there. He was able to double the membership fee after he became president, as corrupt foreign officials see it as the equivalent of one of those $10,000-per-plate dinners where you pay to access the president, only without any of the disclosure rules and regulations. Heck, China even "coincidentally" granted him a trademark which they'd spent ten years denying him, because it was clearly forbidden under Chinese law, and they did that just days after Trump reversed himself on the one-China issue. That trademark (which, again, was illegal under Chinese law) will be worth tens of millions of dollars to Trump in the Chinese market, and he got it right after reversing course on a diplomatic matter near to Beijing's heart. Yeah, "coincidence." Since Congress has decided not to impeach him despite these willful, blatant, and repeated violations of the emoluments rules, for practical purposes that clause has also been effectively informally repealed from the Constitution.
A more obscure example would be the rule that says the president and VP can't be residents of the same state. Bush and Cheney were both residents of Texas when Cheney was added to the ticket. In both the de jure and de facto senses, they were both Texans and were forbidden from being on the ticket together. But Cheney just filed some paperwork saying he was from Wyoming again, and everyone let it go. If that kind of practically meaningless paperwork is enough to void the Constitutional language, there's no point even having it in the Constitution, right? If there's no conceivable scenario in which a Constitutional clause will have any real-world impact, it's just wasting space.
We could also kill the whole first half of the Second Amendment. For many years, that language about well-regulated militias and the defense of the state had a real impact in how courts applied the right to bear arms. But an activist conservative court now essentially interprets the amendment the exact same way it would if you lopped the first half off, so we may as well do that, as well. They've effectively amended the Constitution to be more amenable to the NRA.
The fourth amendment is all but dead, too. Yes, authorities continue to go through the motions of requiring warrants when it comes to old fashioned searches (outside of certain contexts like airports). But when it comes to electronic surveillance, it's more a matter of convention than law, at this point. George W. Bush ordered the warrantless electronic surveillance of US persons, and nothing was done about it. With that precedent around, there's nothing stopping other presidents from following his lead. And no, we're not talking about incidental collection as part of monitoring foreigners. We're talking about him actually ordering US persons to be targeted and electronically surveilled in their international communications, in direct defiance of the fourth amendment and the FISA statute. He got away with it, so in effect that's the law now.
The fifth and eighth amendment are kind of dead, too. The US had people locked up for many years at Gitmo without grand juries, speedy and public trials by impartial juries, the ability to confront witnesses, and they were subjected to cruel and unusual punishment in the form of solitary confinement and other forms of torture. Those responsible for such war crimes never even saw charges, thanks to Obama, who unethically leaned on the Justice Department not to examine crimes associated with the Bush administration.
We could rewrite the Constitution without half that language and it would make no practical difference in how the government functions. Imagine how slim the Constitution can be after just a few more years of heading this direction.
To take the most obvious example, take the bit about Congress having the power to declare war. There are few alive today who remember the last time that happened, and yet we've effectively been in a state of war for much of the time since then. For a long time, there were at least strained attempts to observe proprieties by pointing to other stuff that Congress did, as a way to attribute a use of military force indirectly to Congress even when, as a practical matter, they had no say in it. For example we'd cite a UN or NATO resolution, since those both came out of treaties Congress had signed off on, or we'd point to the 2001 post-9/11 resolution to justify anything that could be treated as an attack on international terrorists. But, these days, even that doesn't seem to apply, since Trump just bombed a facility of a sovereign nation without supporting UN or NATO resolutions, or any Congressional resolution he could plausibly point to as justification. And it appears he'll get away with it. If so, we'll effectively have a system where the president does whatever he'd like with the military.
Or how about the emolument's clause? That is now effectively gone, at least with regard to presidents. For a long time, it was observed fairly strictly. Carter put his peanut farm in a blind trust. Obama donated his Nobel money to charity. Etc. But now it no longer appears to matter. Trump retains control of his businesses and is profiting handsomely from the presidency, as nations curry favor by booking at his for-profit facilities. He's using the presidency to raise the profile of one of those resorts by spending a third of his time there. He was able to double the membership fee after he became president, as corrupt foreign officials see it as the equivalent of one of those $10,000-per-plate dinners where you pay to access the president, only without any of the disclosure rules and regulations. Heck, China even "coincidentally" granted him a trademark which they'd spent ten years denying him, because it was clearly forbidden under Chinese law, and they did that just days after Trump reversed himself on the one-China issue. That trademark (which, again, was illegal under Chinese law) will be worth tens of millions of dollars to Trump in the Chinese market, and he got it right after reversing course on a diplomatic matter near to Beijing's heart. Yeah, "coincidence." Since Congress has decided not to impeach him despite these willful, blatant, and repeated violations of the emoluments rules, for practical purposes that clause has also been effectively informally repealed from the Constitution.
A more obscure example would be the rule that says the president and VP can't be residents of the same state. Bush and Cheney were both residents of Texas when Cheney was added to the ticket. In both the de jure and de facto senses, they were both Texans and were forbidden from being on the ticket together. But Cheney just filed some paperwork saying he was from Wyoming again, and everyone let it go. If that kind of practically meaningless paperwork is enough to void the Constitutional language, there's no point even having it in the Constitution, right? If there's no conceivable scenario in which a Constitutional clause will have any real-world impact, it's just wasting space.
We could also kill the whole first half of the Second Amendment. For many years, that language about well-regulated militias and the defense of the state had a real impact in how courts applied the right to bear arms. But an activist conservative court now essentially interprets the amendment the exact same way it would if you lopped the first half off, so we may as well do that, as well. They've effectively amended the Constitution to be more amenable to the NRA.
The fourth amendment is all but dead, too. Yes, authorities continue to go through the motions of requiring warrants when it comes to old fashioned searches (outside of certain contexts like airports). But when it comes to electronic surveillance, it's more a matter of convention than law, at this point. George W. Bush ordered the warrantless electronic surveillance of US persons, and nothing was done about it. With that precedent around, there's nothing stopping other presidents from following his lead. And no, we're not talking about incidental collection as part of monitoring foreigners. We're talking about him actually ordering US persons to be targeted and electronically surveilled in their international communications, in direct defiance of the fourth amendment and the FISA statute. He got away with it, so in effect that's the law now.
The fifth and eighth amendment are kind of dead, too. The US had people locked up for many years at Gitmo without grand juries, speedy and public trials by impartial juries, the ability to confront witnesses, and they were subjected to cruel and unusual punishment in the form of solitary confinement and other forms of torture. Those responsible for such war crimes never even saw charges, thanks to Obama, who unethically leaned on the Justice Department not to examine crimes associated with the Bush administration.
We could rewrite the Constitution without half that language and it would make no practical difference in how the government functions. Imagine how slim the Constitution can be after just a few more years of heading this direction.