On September 17th, 1787, delegates present at the Constitutional Convention finalized their draft of the United States Constitution; 234 years later, the frameworks set by those delegates largely stand, despite the multitude of changes that the nation has undergone. Although the American people celebrate the existence of the U.S. constitution and its fundamental values every year on the Fourth of July, there have been many criticisms of the Constitution throughout those 234 years. In the “Our Broken Constitution” by Jeffrey Toobin and “Brutus #1” by Robert Yates, the articles present the inefficient use of the Senate, filibusters, and presidential appointments; ranging from Anti-Federalists from 1787 to the modern Democratic Party politicians, both articles speak on how it is this inefficient use of the Constitution's outlines that continues to protect individual rights while depriving the efficiency of government.
The first issue critics of the constitution brings up is the presence and role of the Senate. In “Our Broken Constitution,” the Senate is referred to as “the original sin of the Constitution” (Toobin) by University of Texas at Austin professor of law, Sanford Levinson. He amongst other progressives have stated that while the “process that produced the Senate is understandable…but the end result is indefensible” (Toobin). Referencing the Connecticut Compromise (often referred to as the Great Compromise), Levinson agrees that the debate and conclusion over representation in Congress makes sense but does not hesitate in his criticisms of it. He calls the Senate, in which the smaller states have an equal number of senators, a cause for “distortion” that has “dramatically worsened over the centuries.” As per statistics, he mentions that in 1787, “the largest state, Virginia, had about eleven times as many people as the smallest, Delaware”; now, at the time of writing (2013), “California has roughly seventy times more people than Wyoming,” a stark increase in the population gap between the biggest and smallest state. The issue of having smaller states have equal representation as the bigger states is evident: the majority cannot simply rule. However, Americans believe that the Senate serves as a way for the minority in smaller states to fight up against the majority in the bigger states; this concept of having the majority govern but not rule has been a motif of the nation’s government, giving little room for this inefficiency to be resolved. Moreover, with the passage of the 18th amendment in 1919, the direct election of Senators was guaranteed to the common man, further allowing smaller states to have a strong voice in the governing of the nation. Even in 1787 when the basis of the Constitution was first established, Anti-Federalists, as voiced through “Brutus #1,” that “a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other” (Yates). Although the negative implications of having small-population states obtain equal representation in the congressional upper house has been clear since the Constitution’s writing, at the cost of efficiency, it has guaranteed minorities a strong voice.
Another issue that the articles bring up regarding the constitution is that of filibuster. At the time of writing the Constitution, the Founding Fathers believed that it would remain as a theoretical mechanism that would only be used by the minority group in Congress to respond to emergency situations (although the Founding Fathers weren’t sure on when or what this would be). However, starting from the first Senate filibuster in 1837, there has been an abuse of these filibusters with Republicans under the Obama administration. In “Our Broken Constitution,” Hatch, a Republican from Utah, stated that “During Obama’s Presidency, the number of filibusters has grown dramatically” (Tooblin). Moreover, “approximately half of all the filibusters in American history against Presidential nominations have taken place during Obama’s Presidency” (Tooblin). As stated above, while the use of filibusters has protected the minorities, it’s prevented having a strong efficient government. As written in Brutus #1, “in a republic of such vast extent as the United States, the legislature cannot attend to the various concerns and wants of its different parts” (Yates). While it is important that the government works to match the needs of Americans, it is even more essential that the government act swiftly, something the Constitution trades off for the protection of individual rights.
Finally, the articles reference a critical flaw with our constitution: the weakened state of the legislative branch. At the time of the Constitution's writing, the Founding Fathers, scarred by the British Empire’s colonial rule in which the executive, King George III, abused his powerful authority and taxed American colonists without representation, believed in creating a system where the legislative branch would be able to lead the governance of the nation. However, the legislative branch has lost significant amounts of power since then. In response to this, Steven Calabresi, a professor of law at Northwestern University stated that he would support a system in which “Congress, by a two-thirds vote of both houses” could “override Supreme Court decisions in the same way in which it can override Presidential vetoes” (Toobin). Because the Marbury v Madison Supreme Court case in 1803 established the concept of judicial review, the judicial branch received power to oversee and essentially veto the actions of the other two branches. Although the legislative branch has checks and balances that can be used against the judicial branch (approving of who gets on the Supreme Court), because these justices serve life sentences, the legislative branch has little power in fighting back against judicial review, making the legislative branch weaker. Moreover, in speaking out on presidential appointments, he proposed that he would rather have a system in which “half the Justices on the Supreme Court are selected by the current method of Presidential appointment and Senate confirmation, and the other half by a vote of the fifty state governors” (Toobin). This is in direct reference to the current problem of the executive branch being able to appoint too many people to office, specifically the Secretaries of the 15 executive departments. This worry can also be seen in “Brutus #1” as Yates also stated that the “great officers of government would soon become above the control of the people and abuse their power to purpose of aggrandizing themselves, and oppressing them” (Yates). While this abuse, aggrandization, or oppression has not fully happened, the legislative branch clearly has lost much power to the other two branches; while the growing strength of the Supreme Court has worked to protect individual rights, it has made the system inefficient as with so many key players, getting bills and actions finalized has become harder than ever before.
In both “Our Broken Constitution” by Toobin and “Brutus #1” by Anti-Federalists, the authors speak out on how the Constitution has many flaws: the Senate, the filibuster, and the weakened state of the legislative branch. These flaws have paved the path for the protection of individual rights while depriving Americans of an efficient government. Progressive critics continue to press on for the revisiting of the Constitution to account for the world’s changes in the past 234 while conservatives continue to fight for the preservation of the current document, making it more important now than ever to have a balance between the two opposing sides. Indeed, in order for America to continue on, it is essential to first recognize that the Constitution may have flaws and then consider whether the costs of keeping it are worth its benefits.