A new slant on the Constitution (News Journal)

CONSTITUTION DAY - In previous years, the News Journal essays on Constitution Day have focused primarily on individual rights versus “checks and balances” and other provisions that regulate the functioning of the overall government. This year’s essays (which appeared in the 9/18/20 print edition, perhaps there will be more) made the opposite choice. Leaving aside the substance of the views expressed, this change in emphasis seems like a good thing.

As Americans worry about the future, we celebrate the Constitution, Alan Garfield (a professor at Widener University Delaware Law School) – Pausing every year to reflect on the nation’s “foundational charter” is a good thing, especially this year “when our constitutional democracy seems to be fraying” and “some fear it is coming apart at the seams.”

Federal government’s failure to implement a coherent response to COVID-19 pandemic, which in turn has “prolonged an economic shutdown that has cost millions of jobs” – Congress paralyzed by “bitterest partisan divide in memory” – “President Donald Trump, who we now know consciously lied to the public about the danger of the virus, persists in giving advice rejected by his own experts.”

Marketplace of ideas is awash with misinformation – being directed at those susceptible to being misled – including misinformation from Russia, which is again trying to interfere in our elections – and judging from a recent whistleblower complaint, Trump administration “appears more interested in facilitating this interference than stopping it.”

Perhaps most alarmingly, “many Americans are even wondering if the nation is capable of holding a free and fair election.” Pandemic – want to vote by mail – fear USPS “will not be given the resources to ensure the timely delivery of their ballots.” And President Trump stirs the pot every time he claims that he could only lose if “the election is rigged.” He is oblivious to fact that his words threaten to undermine the peaceful transfer of power.

Would be nice to think that constitutional checks and balances ensure against a bad outcome, but in the end the only true failsafe is the vigilance of “We the people.” Ben Franklin and his reported comment about “a republic, if you can keep it” – a talk by Judge Learned Hand in 1944, in which he warned that when liberty dies in the hearts of men and women, “no constitution, no law, no court can save it.”

Resolve to vote, no matter what – frightening virus, bad weather, underfunded post office, long lines at the polling places. Let public officials know “that partisan efforts to disenfranchise voters are unacceptable; a democracy facilitates voting, not impedes it.” And make the effort “to seek out credible and unbiased sources of information so they can exercise their sacred franchise wisely.”

Hmm, short of telling people who to vote for this essay could hardly be written in a more partisan vein.

#The Constitution has been ignored, Edward J. Larson (a Pulitzer Prize winning historian, 1998 for a book on the Scopes trial, and University Professor at Pepperdine University) – Constitutional safeguards have “failed in significant and ominous ways during the Donald Trump presidency, but not all of these failures are unique to Trump.” There were unfavorable trends and dubious practices of prior administrations, but many of these “presented themselves in particularly extreme or virulent forms in the past four years.”

Why? Constitution gives president a lot of military and administrative power. And if the electorate selects an authoritarian-minded president and the other constitutional actors fail to counteract him, watch out. The core principle is that Congress should legislate and the president execute.

Some constitutional provisions have been violated, ignored or treated as inconsequential, thereby “tilting power toward a single person.” For example:

•Overuse of emergency declarations and executive orders by “recent presidents” – emergency declarations should require congressional approval to remain in effect for more than “a fixed number of days” – either house of Congress should be able to challenge an emergency declaration or executive order in court.

•No more reprogramming of funds when Congress had refused to approve a specific use, e.g., building of a border wall.

•No more evasion of Senate confirmation process “by naming perpetual ‘acting’ appointees as Trump has done."

•Judicial enforcement processes needed to “give teeth to the Constitution’s emoluments clauses, congressional oversight powers, and the Hatch Act.”

•Presidents should be required by law to disclose their tax returns.

•Declaration of war – except to repel a military attack – should be reserved to Congress.

The Road to Serfdom, Friedrich von Hayek, 1944, suggested that national socialism can erode democracy and individual liberty. “Unchecked and imbalanced” government may have the same effect. And don’t forget Ben Franklin’s famous quote that the founders had created “a republic, if you can keep it.”

So clearly “the road back to the rule of law consists of restoring the original understanding of the Constitution. *** Regardless of who wins in November, shoring up these norms serves as the surest safeguard of republican constitutionalism and the rule of law.”

The idea of undoing 233 years of constitutional history is wildly impractical – if that’s what the writer truly means. And his essay overlooks the fact that presidents (notably including Barack Obama, who is not mentioned by name) have tended to push the limits on their powers due, in large part, to the failure of Congress to act decisively when problems need to be addressed. Our goal should be changes to the current system that will improve its functioning, not restoration of the status quo in 1789 or whatever. Compare SAFE newsletter, Spring 2020.

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