Constitutions are not words on paper. They are the rules that are actually followed. Most famously, in the United Kingdom there is no written constitution; the rules that are followed are rooted in custom punctuated by acts of Parliament. Yet no one will argue that the U.K. is not a constitutional monarchy.
The rules being followed in our country differ from those on paper. Bills require sixty votes to pass the Senate, for instance, even though no such requirement is in the text of the constitution. The Supreme Court is not given the power to overturn acts of Congress, but it does so routinely. Congress is explicitly given the power to limit the Court’s powers, but it has never done so. Congress is also granted the power to impeach and remove the President, and while three Presidents have been impeached, none has ever been removed.
The text of the constitution does not put the President above the law, but no President has ever been held accountable for violations of any law. In theory, the President is not above the law; in practice, he or she is. Justice Department policy is never to indict a sitting President, and until last year, former Presidents were never prosecuted for acts committed in office. George W. Bush, whose crimes include waging aggressive war, sanctioning the torture of prisoners, and kidnapping people arbitrarily and holding them indefinitely without due process, has never been pursued.
The text of the constitution reserves for Congress the power to declare war; yet Presidents routinely order acts of war on their own, without a formal declaration of war. Congress has not passed a formal declaration of war since 1941, yet our country has since fought wars in several countries. The 2001 Authorization of the Use of Military Force was not a declaration of war on any country, but an open-ended license for the President to wage war anywhere in the world without such a declaration; in effect, it renders the text of the constitution null and void.
The Bill of Rights, too, has been reinterpreted over time to prescribe things its authors couldn’t have imagined. The First Amendment is now a license to bribe; the Second, a license to kill. As Congress grows ever more dysfunctional, the Supreme Court has emerged as the most powerful branch of government. It has intervened in state elections, struck down laws keeping neighborhoods safe, and severely limited the bodily autonomy of women. It has overruled the President on immigration policy and Congress on voting rights; indeed, there is virtually no area in which it does not meddle.
We do not live in the federation of democratic republics described by the text of the constitution; we live in a country ruled by nine supreme judges whose word is law and who are neither elected nor have any check on their power. They exercise veto power over every act of the two elected branches and of every act of any state governor or legislature.
To those who protest that this is not the time to revise our constitution, I ask: is this the regime you want to live under?