The Constitution: Dead or Alive

, Malcolm A. Kline, Leave a comment

It’s interesting that some of those who would make the “living Constitution” argument seem most anxious to put the old parchment to rest. “What’s coming will be painful, frustrating, and dangerous—and it will illustrate a constitutional malfunction unforeseen in 1787,” Garrett Epps writes in The Atlantic. “The country will survive, and it’s possible it can even make progress—but at tremendous cost in polarization and missed opportunity.”

“The country is like a car driving with the handbrake on: Any movement forward will be accompanied by smoke and internal damage.” Epps is a professor of Constitutional Law at the University of Baltimore.

“So we might profitably put a six-month moratorium on paeans to the wisdom of the Framers,” he avers. Profitable to whom?

The problem of divided government is a bug, not a feature, and the Constitution itself provides no guidance on how to work around it,” Epps avers

“I’m not taking one side against the other; I’m trying to illustrate a dangerous weakness of our system, one that the Framers clearly did not foresee,” Epps claims. “Many of them believed there would not be political parties in the new system. Others no doubt thought that the government they had designed would consist of a Congress that met for a month or so every December and a president who would supervise a slumbering bureaucracy the rest of the year. Some of them assumed the president would be a passive figure, administering directions from Congress; others imagined a chief executive with some of the majesty of the king of England.

“I don’t think any of them anticipated that the two branches would ever clash over which represented ‘the will of the voters.’” His timing is impeccable: He writes this after voters nationwide willfully cast their ballots against the policies of the president.

Moreover, isn’t it a fascinating dichotomy that when a Republican president commits an act of questionable Constitutionality—Nixon comes to mind—it precipitates a “Constitutional crisis” in the minds of elites, as they oft state, but when the Constitutional malefactor bears a D, the Constitution is the problem?

If indeed there is a problem with the Constitution, perhaps it is that it is not being followed in a bipartisan fashion. This seems to be the view of a pair of historians from The King’s College, who beg to differ with Epps. Actually, they don’t beg.

“Much could be said in response to this charge against the founders–starting with the fact that they didn’t just anticipate divided government, they designed the government to be divided with the separation of legislative, executive, and legislative powers,” David Corbin and Matt Parks write. “If they erred, it was in assuming (a) that the government would be divided as much (or more) legislature against executive as Party X against Party Y and (b) that parties would be more numerous and fluid than they have turned out to be.”

“They hoped, in other words, for something better in congressional leaders than sycophantic ideologues, like Senator Reid, who invite the president to ‘go big’ in usurping legislative authority, but they harbored no illusions that their system would facilitate expansive legislative programs, which were neither needed (see Federalist 53) nor conducive to self-government (see Federalist 62).”

“Gridlock, most of the time, was a better option that bad or frequent lawmaking–and the occasional times when it frustrated good initiatives were a reasonable price to pay for avoiding the assaults to enterprise and liberty of a voluminous and unstable legal code.”

Speaking of which, it is worthwhile remembering the words of the brilliant author M. Stanton Evans who said: “Gridlock is the next best thing to having a Constitution.”