As an example of this dynamic he calls “early plasticity, later rigidity,” MacAskill asks us to consider the U.S. Constitution. It was written over 116 days, and amended eleven times in the first six years. But in the last fifty years, it’s only been amended once. I suspect that if we don’t make headway in ending factory farming soon, it’ll be not unlike many of the constitutional laws we find distasteful—seemingly impossible to overturn.
Are there many parts of the constitution that ‘we’, meaning people in general, find ‘distasteful’? My impression is that most of the constitution either has few critics, or, if it has many critics, also has many defenders, or the critics disagree about how to change it. If we were to write it from scratch today, we’d probably end up with something quite different in many respects, but that doesn’t mean there are massive generally agreed problems with it.
Yes, there are many things that majorities want that they do not get, especially if there are many people who oppose the change, and they care a lot about opposing the change. A 60:40 split is a long way away from being sufficiently universal ‘distaste’ that we should expect it to necessarily triumph. This was true when the constitution was first written and remains the case today, so is not a sign on increasing rigidity.
The low hanging fruit was picked early; you can only pass the first amendment once.
Changing SCOTUS philosophies, in particular the rise of Living Constitution Doctrine, meant that formal amendments were not required because the Justices would just make up new interpretations of old words to suite contemporary political situations. With the recent fall from favour of this doctrine and the rise of Origionalism it seems possible to me we might see more amendments in the future.
I’d certainly write the constitution differently (why doesn’t it mention welfare for insects, for example?), but I more take it to mean that numerous amendments were required to make it moral, and still many more are needed.
why doesn’t it mention welfare for insects, for example
Because most people do not care about insect welfare. The issue is not ‘rigidity’; no sane amendment process would lead to the constitution mentioning insect welfare.
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Are there many parts of the constitution that ‘we’, meaning people in general, find ‘distasteful’? My impression is that most of the constitution either has few critics, or, if it has many critics, also has many defenders, or the critics disagree about how to change it. If we were to write it from scratch today, we’d probably end up with something quite different in many respects, but that doesn’t mean there are massive generally agreed problems with it.
A majority oppose the electoral college (which gives unequal weight to different people). https://www.pewresearch.org/fact-tank/2022/08/05/majority-of-americans-continue-to-favor-moving-away-from-electoral-college/
Yes, there are many things that majorities want that they do not get, especially if there are many people who oppose the change, and they care a lot about opposing the change. A 60:40 split is a long way away from being sufficiently universal ‘distaste’ that we should expect it to necessarily triumph. This was true when the constitution was first written and remains the case today, so is not a sign on increasing rigidity.
Why then do you think there are fewer amendments overtime?
I think there are two main reasons:
The low hanging fruit was picked early; you can only pass the first amendment once.
Changing SCOTUS philosophies, in particular the rise of Living Constitution Doctrine, meant that formal amendments were not required because the Justices would just make up new interpretations of old words to suite contemporary political situations. With the recent fall from favour of this doctrine and the rise of Origionalism it seems possible to me we might see more amendments in the future.
Interesting. Thanks for your comments.
In the meantime, I would treat the constitution component in the piece as a metaphor to illustrate the idea of lock-in for a general audience.
I’d certainly write the constitution differently (why doesn’t it mention welfare for insects, for example?), but I more take it to mean that numerous amendments were required to make it moral, and still many more are needed.
Because most people do not care about insect welfare. The issue is not ‘rigidity’; no sane amendment process would lead to the constitution mentioning insect welfare.