Constitutionally Weak USA?



A lot of the famed “Constitution” of the USA is not really a “Constitution” at all. It is actually tradition, not constitution.

In democracies, “Constitutions” are established by Constituting Assemblies elected by the People. In other words, the People rules what Constitution it wants, through a process in which it is represented.

France and the USA did this in 1789, a few weeks apart. The difference is that the Constitution of the French republic was found grossly inadequate, in the meantime, and has been extensively modified since, and is modified, to this day. In the USA, a few amendments were passed, the rest was changed informally. Imagine the Wright brothers’ airplane, with a few new pieces, here and there, now flying 310 millions.

A lot of the machinery of the USA is extra Constitutional. For example, the most important activity of the US Supreme Court, to act as a sort of Constitutional Court, was not formally instated by the Constitution of the USA. This role was just informally grabbed by enterprising judges, in some way, at some point, in the nineteenth century. Thus that Constitutional watchdog role is not really there. Hence oftentimes, Supreme Court justices grandly declare that they cannot “legislate from the bench”. In other words, no organization is defending the Constitution, in the USA.

The filibuster rule in the Senate is an example of another of these ad hoc rules. 60 votes, out of 100, are needed to pass anything. Why not 99 votes? Why not, indeed: the filibuster rule is not in the Constitution. Why is it there? Well, because there is not much of a separation between Money and State in the USA.

Wyoming has 570,000 inhabitants, California more than 37 millions. Each has two senators. This has become a living dream for the plutocracy, which can easily purchase a few otherwise impoverished senators, and control everything at little relative cost.

Overall, the USA has the oldest, most obsolete Constitution, probably adequate only for the tentative state with a few hundred of thousands voters it started with, 200 years ago, when the aim of the USA was to conquer vast swathes of the Americas. Now the age of conquest is over, and the age of wisdom calls for a more regulated republic, differently constituted.

By contrast, the European Union has a sort of rolling constitution, continually morphing. Also European citizens are protected by a variety of fully endowed Constitutional and Supreme Courts. Thus, in Europe, those high courts can defend individuals to the point of forcing the states to change their ways. They have the constitutional backbone to do it.

Most countries change their constitutions, fast, because the world is changing, fast. Not that the USA is not changing. It is. But the Constitutional stasis forces most of these changes to be extra-Constitutional

An example: Bush institutes torture, Obama forbids it: the monarch decides of all, according to his good pleasure. But what happened to the rule of law, and the rule of the People? What happened to the Constitution? Was torture legal, or was it unlawful? Was it Constitutional? Is Obama’s Bagram black prison in Afghanistan, and its equivalent in Iraq, Constitutional? Who, or rather, what, is defending the Constitution?



Bush institutes torture, Obama forbids it: the monarch decides of all, according to his good pleasure.

France had such a practice of government for centuries, in Medieval times. The king would say: “I decided this and the other thing, car tel est mon bon plaisir!” (…because such is my good pleasure!)

In truth, there were strong limits to the power of kings, at least in France and its ex-vassal England. The king in England, the Duke of Normandy, ruled in the name of a direct covenant with the People, and strong French kings always used that same argument. (After claiming, for six centuries or so, that they were elected).

Both English and French kings were ruled by the Salic law, Roman law, the principle of the state of law (coming from a Roman Augusta), besides a few add-ons in England, and the entire contraption under the watchful eye of Parliaments and the councils of the kingdoms. This is not just a picturesque perspective: Louis IX (“Saint Louis”), hated Jews and unbelievers, and wanted “to plant swords in their bellies” (as he poetically put it). But he could not do anything much, practically, because he was blocked by the law (Hitler, later, changed the law).

By 1700 though, torture was forbidden in England, and could not have been instituted by the monarch. Even earlier, the French monarch could not have decided to torture on his own: judges, and parliaments decided of such things. The latest French monarch to use forms of torture on his own volition, by putting some of his enemies, who were serious enemies of the state, into cages, acquired a bad reputation, to this day.

This king, Louis XI, the “Prudent and Universal Spider” weakened the great lords, with the support of the People. So he was an excellent king, who, among other things, protected the Protestants from the rabid Catholics who harassed them. Louis XI, though earned a lot of disrepute because of a few cages.

Louis XI the Prudent

King of France
Louis XI wearing his Order of Saint Michael

The point is that Louis XI died on 30 August, 1483. And that no king of France behaved that way since (and it was with just a handful of convicts of the most dangerous type, dangerous enemies of the state, not little criminals, rogue CIA agents, such as Osama bin Laden). That American presidents, with little apparent reason, would behave the same, without a Constitutional framework, is troubling, and a testimony of the weakness of the present Constitution of the USA.


Patrice Ayme


P/S: Is the Constitution of the USA only adequate for a small city? 38,818 individuals voted in the first presidential election of the USA, in 1788. Yes, less than 40,000 voters. In 2008, Los Angeles had 200 times more denizens.


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