Our Broken Constitution

The recent news stories that Obama intends to implement much of his health care agenda through executive orders shows just how broken the Constitution of the United States has become. The foundational document of American government provides no legislative power in the presidency – none, zero, nada. George Washington felt that even the presidential veto should be used only in opposition to congressional bills that were unconstitutional.

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Now, the notion that the president can, effectively, legislate without the involvement of Congress (in certain areas and for certain reasons) has become quietly accepted as part of our federal system. More troubling, a vast amount of law-making has been delegated to quasi-independent agencies like the Interstate Commerce Commission, the Federal Communications Commission, and the Federal Power Commission. The people who serve on these bodies are not elected. They are appointed for long terms by the president and confirmed by the Senate. Independent regulatory agencies in effect make regulations, execute laws and regulations, and even serve as an administrative tribunal for those laws and regulations. Congress has created these bodies by statute, but the authority to do this under the language of the Constitution is extremely dubious. Not only do presidents and independent regulatory agencies now “make” law, but federal judges have been doing that for a long time. Judicial orders, often spun out of whole cloth from the notional language of the Constitution, “create” new law. Aside from the sheer confusion of having so many conflicting sources of federal law, these myriad federal legislative entities are almost entirely unaccountable to the people. Federal judges serve for life. The essentially anonymous commissioners on all the regulatory bodies, never elected, serve such long terms that they might as well have lifetime appointments in some cases. The amendment of the Constitution, which is the only means by which federal legislative power could be devolved to other bodies, has long since simply been ignored. When the Supreme Court passed Roe v. Wade, it amended the Constitution while lying through its teeth about finding a penumbra of privacy rights. The process for amending the Constitution requires, and was intended to require, a vast consensus of political will: two thirds of both houses of Congress and three quarters of both chambers of the legislatures of the states. How do we amend the Constitution these days? Five out of nine justices of the Supreme Court decide what they would like the Constitution to be. A simple majority of nine unelected judges can do almost anything in our constitutional system. Thomas Jefferson thought that a simple majority of both houses of Congress should be sufficient to overturn a Supreme Court decision. Now, the only way to overturn the ruling of the Supreme Court on a constitutional issue is two thirds of both Houses and three quarters of both houses of the state legislatures. The areas of proper federal legislation have also grown exponentially, far beyond anything dreamt of when the Constitution was adopted. During the health care debate, some innocent asked where in the Constitution was the authority to compel everyone to purchase health insurance. The left quickly found the answer: Congress can levy taxes; the penalty for not having health insurance is effectively a tax; ergo, Congress can pass that penalty. In essence, the Constitution is interpreted to allow the federal government to do anything (or to require any behavior and then assess a draconian penalty for not complying.) States, the source of constitutional power, have become little more than slavish appendages of the federal octopus. Enumerated powers, separation of powers, checks and balances, high thresholds for amending the Constitution, and a system of co-equal state and federal powers – these were the promises made to the people and to their sovereign states when the Constitution was adopted. Has any solemn promise not been broken? Federal offices swear to protect and defend the Constitution, but when is the last time this sacred oath was taken seriously? What Americans should do about our broken Constitution is hard to say. The reassertion of sovereign state power, which was an early constitutional response to the Alien and Sedition Acts, is one answer: if enough states simply denied that the federal government had the authority to do what it was doing, or that the Supreme Court had the ability to trump the Constitution and the Bill of Rights, that might be hard to overcome. A combination of a president and Congress committed foremost to restoring the proper constitutional roles of each part of our government would work, but it has been decades since such political will has been manifested in our government. Finally, a genuine consensus in Congress and among states about what our Constitution ought to say today – like how to interpret its provisions, something silent in our Constitution and hijacked by the Supreme Court – could work. The only thing sure is that our Constitution today is badly broken and desperately in need of repair – and that reform will not come unless, We, the People, demand it.