Constitutionality

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A luminous proof of the power of constitutional protections – and their limits – was given by events in the US on the weekend of 14-15 June 2025. The US has a constitution which affords rights of great importance to citizens (and not only to citizens, but to visitors and illegal immigrants: see below) and which embodies principles that provide a counterweight to the deliberately undemocratic features of the US system, especially as these operate at the federal level. These undemocratic features are a problem, a serious problem, for the US, as exposed by the activities of Trump and his administration. Matters are as follows.

The First, Fifth and Fourteenth Amendments are key elements of protections for people within the US’s borders, protecting speech and locking-in due process respectively. The impressive and admirable display of people power in the massive ‘No Kings’ demonstrations on 14 June 2025 shows the First at work and the Fifth and Fourteenth standing behind it as a security. So far, so very good.

But the virtues of the US Constitution are not unalloyed. The infamous Second Amendment, according a ‘right to bear arms’, is toxic: more below. Autonomy and self-determination over one’s own body, a matter of vital importance in regard to abortion, is inferred from, rather than explicitly protected by, privacy considerations (themselves just implications) in e.g. the Fourteenth Amendment – but as with the Second on guns, interpretations of the Fourteenth allow decisions to go either way: Roe v Wade was decided in favour of bodily self-determination in the relevant sense by inference from the Fourteenth, which nevertheless was invoked in an opposite sense by the Trump Supreme Court in overturning it. These examples show that a constitution requires explicit updating and clarification when circumstances require, as e.g. when ‘arms’ cease to be muzzle-loading single-shot muskets and become high-powered automatic assault weapons, and when religious proscriptions on women’s reproductive destiny no longer persuade in an era in which the means exist for safe choice and greater self-determination.

To say that there is a democracy deficit in the US might at first seem absurd, given the number of elections for sheriffs, judges and mayors in various ways in various states, and the enormous pride taken by the people of the US in being a ‘City on the Hill’ exemplar of democracy. But the Founding Fathers, in constructing a ‘republican’ (representative, indirect) system, deliberately sought to filter out the impact of raw majoritarian democracy. This is especially obvious in regard to the Senate, Presidency and Supreme Court. Consider each in turn.

The Senate is a States’ house, with two senators from each state irrespective of the population size of the state. This is frankly undemocratic, and accepted as such, and it introduces a permanent conservative (in at least the ‘small-c’ sense) bias in Congress. It originated in the anxieties of the independent colonies at the time of the US’s founding that they would be overwhelmed by a federal system; states’ rights and functional independence in local concerns then required a defensive barrier at the federal level, and the Senate was constructed to provide it.

The President is elected not by the people but by an Electoral College which, though putatively taking the sense of the people’s preferences into account, is supposed (so Hamilton, its architect claimed) to ensure that whoever becomes ‘chief magistrate’ of the country should be a ‘fit person’ for the office. In practice, as the manifestly unfit Trump proves beyond all doubt, the Electoral College is a mere cipher for partisanship, its only effect being to nullify the popular vote independently of considerations of ‘fitness’: twice this century US Presidents have been elected with fewer votes than their rivals (George W. Bush and Trump 1). Such nullification is precisely the College’s point, and had it worked as Hamilton intended, it would have refused Trump both times. But evidently a far better system would be one in which two or more rounds of voting, with elimination of candidates at the bottom of the pile and transfer of second-choice votes, would result in an eventual true majority of preferences to a winner, thus ensuring a greater degree of consent among the people for the person who is to be their ‘chief magistrate’.

And thirdly, the Supreme Court. One of the principal results of the breakdown in bipartisanship in Congress, as a result of the programmatic rightward radicalisation of the Republican Party from the 1980s onwards, is that appointments to it have been party political, notably when a Republican is in the White House. The Supreme Court is today a party political court; the separation of powers, the concept of a balanced court with one or two swing votes in it, the idea of unimpeachable legal and personal qualification for justices, have all gone. In today’s US the state judiciaries and federal circuits are a bastion against the authoritarian encroachments of Trump, but the inevitability is that appealing upwards to the Supreme Court will deliver what Trump wants, overturning the lower courts’ decisions.

The basic fault-line in the whole structure is the result of inattention by the Founders: the voting system for the House of Representatives. In the eighteenth century plurality voting (‘first past the post’) was taken for granted, borrowed from England without thought, because it seemed superficially obvious that whoever gets the most votes should be the representative. Consider how this works: suppose you have five candidates and fifty voters. If the first three candidates get ten votes each, the fourth gets nine votes, and the fifth eleven votes, the fifth is elected because s/he got more than any of the others individually – thus, on eleven votes against a total of thirty-eight for other candidates. A proportional system – say, transferable second-choice votes – would result in a representative with more overall support than is displayed for rivals, and thus with greater democratic sanction. But in the US (and most other ‘Westminster Model’ polities using plurality voting – the UK, Canada, India etc., where the ‘winning’ party more often than not holds power on a minority of votes cast: in today’s UK the government has an unassailably large parliamentary majority on 33% of votes cast), the result is squeezing out of third (and fourth etc.) party candidates, resulting in a two-party system in which the winner takes all and between elections therefore runs a one-party state. Two party systems are deeply divisive and polarising; look at the US today, a bitterly divided country in a state of virtual civil war. Squeezing out other parties forces a Hobson’s Choice on voters, and leaves many interests and needs among the people without a voice in the legislature.

Now back to the Second Amendment. The ‘right to bear arms’ was accorded when the newborn US had just won its independence in a war (effectively a civil war; the colonists were British subjects severing themselves from the British subjects on the other side of the Atlantic; recall that the US was carved out of only part of British North America, Canada resulting from the remainder), and the necessity for a militia – preferred to a standing army by the Founders – was a necessity in case hostilities resumed. A militia requires that its individual members have arms. In effect, the US National Guard today is the militia of yesteryear, so by implication only National Guardsmen should have arms, and possession of these should be expressly for use only on National Guard duties. An accident reconfigured the arms situation in the early US: the frontier. Hunting and defence (or ‘defence’) against the indigenous population trying to protect itself from invasion made possession of arms a necessity in those areas where the dangers of starvation and attack existed. Today, after several back-and-forth decisions by successive Supreme Courts on interpretation of the Second Amendment, almost any resident of the US can have an arsenal of highly dangerous powerful weapons, and the rate of death from them – one person every eleven minutes – is an ugly condemnation of a twisting of history. This is not what the Founders intended, so constitutional ‘originalists’ have no case for the current situation; and it is not what modern conditions rationally license, so non-originalists have no case for the current situation either. In short, there is no case for a ‘right for any citizen to bear arms’ (currently only lunatics and criminals are excepted – but those who want, and those who use, arms would seem to fall into those respective categories anyway).

Finally, on the ‘due process’ protection and its application to anyone, whether citizen or not, within US borders: the logic of the Fifth and Fourteenth Amendments alone would guarantee this, because they individually and jointly embody a universal principle of the rule of law: that anyone accused of a crime should have a right to hear the charge and defend himself against it, in a fair and proper proceeding which respects his basic rights as a human being while the issue is undecided; only after conviction, if conviction is secured, can some of his rights (e.g. to liberty) be suspended. But in fact the Fourteenth goes much further, and is explicit on the matter, by according ‘the equal protection of the laws’ to anyone within the jurisdiction of the US: ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ To any person, note; any occurs twice; and moreover ‘any person within its jurisdiction’; which means that when I visit the US not only am I within the jurisdiction of its laws and of course must behave according to them, but also that I benefit from their protection while there. Just because I am a visitor does not make me open season for someone to rob or murder me; if injured by anyone, citizen or not, while in the US, I have remedy against them under US laws.

And this means that an ‘illegal immigrant’ in the US has rights to due process and protection under the laws, including protection against arbitrary arrest and abusive, cruel or inhumane treatment. And this standard, which is about as basic, straightforward and unimpeachable as you can get, calls into severe question the Trump Administration and its ICE round-ups and deportations.

So: the US is deeply flawed in its democratic credentials, but wonderfully – if with big question-marks over the Second Amendment – equipped by its Constitution. But note this: even if the electoral and separation of powers structures were reformed, as they most decidedly should be, the constitutional arrangements would still be key, because they serve to protect minorities – including minorities of one – against the tyranny of majorities. That is what the concept of ‘rights’ is all about. And it is good constitutions, not totals of votes, that protect rights; which is why ‘constitutionality’ is the key to the possibility of what Aristotle called ‘good enough government’ (he was a realist and knew perfect government is almost certainly unattainable) wherever government exists, so designed in regard to individual liberties and social justice that the situation desired by Frederick Douglass, viz. that ‘We ought to have our government so shaped that even when in the hands of a bad man we shall be safe’, can be realised.

See my The Good State (2020) and forthcoming For the People (2025) for a fuller discussion of these points.