The US Constitution does not need to be replaced or scrapped, as a number of folks on the left have suggested going back to President Woodrow Wilson. It does not need to be cured of its fatal flaws, so that Obama can implement redistribution of wealth and “break free” from the negative liberties placed by the founding fathers to prevent this, as Obama said in 2001.
Nevertheless, there are major problems with our current government. Some examples after a design overview:
Separation of powers, in two directions
Part of the Constitution’s brilliant design is to divide powers both vertically and horizontally, setting up checks and balances between these divisions to retard the development of tyranny. It worked for a long while.
Horizontally, we have the legislative, executive, and judicial branches, as defined in the beginning paragraphs of Articles I through III:
(from Article I): All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
(from Article II): All The executive Power shall be vested in a President of the United States of America… He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
(from Article III): The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
The legislative branch in this design makes laws, the executive branch (the president and his staff) enforces them at the federal level, and the judicial branch rules to keep the playing field level for all persons under the law (including corporate persons, a concept already understood at that time). Mechanisms are given to each of these to reign in the others as needed, and to limit the power of any one branch.
Vertical divisions, too
Vertically, the divisions are federal, state, and people. The original concept was that the people held all rights, and that they didn’t have to be explicitly named. Some objected to this, so work was begun on a specific set of amendments that eventually listed certain rights that the government could not interfere with. This Bill of Rights included what became Amendment X, a reference to the vertical devisions:
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So, everything not explicitly a federal responsibility is a power belonging to the states or citizens. There is a detailed list in the Constitution of the federal responsibilities, but they are finite. Or at least, they originally were.
What went wrong?
What’s happened to this brilliant design? The first corrosion of it was arguably when the Supreme Court decided that it could determine whether laws were constitutional or not. This is not called out as part of their charter, but they asserted this ability in 1803 in Marbury versus Madison, and it was allowed to stand. We’ve lived with it ever since.
Then the commerce clause was compromised. Instead of limiting the federal authority to “trade between the several States,” this clause was expanded over more than a century to eventually include any activity that might, by some stretch, affect any transaction in a state. Thus the ability to grow your own food was prohibited in the 1930s, because it reduced how much you would purchase. The Supreme Count backed this up. Other rulings have used this same sort of logic to leverage the Commerce Clause, including Obamacare.
There are many famous issues now where President Obama has decided that he can avoid enforcing some parts of laws, such as his de facto repeal of parts of the 1995 Welfare Reform law. Or he can make up new laws, bypassing Congress entirely, despite his authority being limited to “recommending” items to Congress’ attention. He’s about to do this again with regard to the disposition of the newest crop of illegal immigrants.
Career politicians and bureaucrats
An additional issue, rather more subtle, is the idea of career politicians, which is essentially an artifact of the 20th century. We’re not really preserving expertise at lawmaking, as the laws are drafted by the aides, or by outside groups. We’re just arranging for people to buy off enough constituents, with other people’s money, to get re-elected.
But here is the big problem: Laws are being made, not so much by the legislature nor even by “I’ve got a pen and a phone” President Obama, but by a massive unelected cadre of bureaucrats who never face public selection or rejection at the ballot box, and who are rewarded for failures with increased budgets.
So how do we fix it?
Let’s save that for tomorrow, but there is a way.
What happened to Keith?
Well, part of the story is that I have been in and out of the hospital. Another part is a move, involving a very full five-bedroom home and an overstuffed garage full of business and other records, shop tools, and … stuff.
These came in such rapid succession that the movers delivered the last load to the new place, and then took me to the hospital in their truck. I had recovered well, eventually, from the food poisoning that killed my Lady Anne in early April. But I did not realize that it had settled into my peripheral nervous system and began its attack from there.
By mid-June, it was clear that something was going on with my feet and lower legs, as well as my balance. By the end of June I could only get around using a walker. And by the Independence Day weekend, I was reduced to substantial dependence, as I could no longer walk at all and the nerve damage was progressing to my hands and arms. And I was swollen, massively, from the waist down, putting on 50 pounds in a couple of weeks. There were other effects.
The hospital did not recognize what was happening, and let me out after a few days of balancing my blood components. The day after my release, they got lab results back: Campylobacter jejuni from the food had evidently settled in to cause Guillain-Barré syndrome. I had asked the movers to return to help unpack; I was quite limited in strength and mobility at that point, and once again I was delivered to the hospital in their truck.
But now the doctors had a target, and a plan. I am back out now, released last Saturday, though I was doing conference calls from the hospital room to keep business going. And I am doing better, now able to use the walker again and regaining, slowly, sensation and functionality. The swelling has also reduced, though not yet completely. I will be wheelchair-bound for any serious distances; my new “wheels” arrive tomorrow. I’m not confident enough to drive, quite, until I can actually feel the pedals and control my feet better. This should come soon.
I am on the path to recovery, and only disappointed at how long a trip it seems likely to be.
I do have many thoughts about our current situation, and hope to be active here through August and beyond. Thank you, friends, for your patience.
===|==============/ Keith DeHavelle