The American republic is fragile. It always has been. You probably recall that we killed about 700,000 or so of our own citizens between 1861 and 1865 over the issue of Constitutional power. While the Civil War was certainly America’s lowest point, it is not at all the only time our republic has been endangered. More on that later.
Here is a brief summary of the constitutional framework established by our Founders (I’m sure you all know this):
- Three branches of government; legislative, executive, judicial. This idea was borrowed from the philosopher Montesquieu. As we all learned in our high school civics classes, Congress was to pass laws, the president would execute them, and the courts would apply the laws to specific cases. Each branch would have some control over the other two so that no branch could become too powerful. The Founders almost certainly expected Congress to be more powerful since it more closely represented the citizens. And yes, I’m being overly simple here because the Constitution was vague and, at times, contradictory.
- The Federal Principle: a national government and state governments with each level having responsibility for certain governmental powers. The national government would, for example, be responsible for the military and coining money and states would take care stuff like roads and education.
Again, the Constitutional framework established by the Founders was much more complex than I make it sound, but you get the idea.
Here are the problems: The system only works when each governmental entity does as it was intended and when each entity doesn’t overly interfere with the responsibilities of the other entities. Then there is the fact that the responsibilities of each governmental entity are often unclear and open to interpretation, and the responsibilities of each branch and level of government have evolved over time.
The bottom line is that each governmental entity MUST respect the other entities’ powers to keep one branch from becoming too powerful. States cannot begin declaring war. The national government cannot assume responsibility for trash collection. Congress cannot assume responsibility for negotiating treaties, the president cannot overturn a law previously passed by Congress, the courts cannot pass laws, etc.
How nice it would be if it was all this simple. It isn’t. At times one branch of government will overstep its authority (the Supreme Court writing abortion guidelines in Roe v Wade, presidents issuing executive orders to circumvent Congress, etc.), and at other times it seems that one branch almost begs one of the other branches to do its work (Congress pretty much all the time during the last fifty years). Our constitutional fabric is easily torn or at least seriously wrinkled.
The Constitutional framework is currently in a state of chaos (OK, that may be a bit strong. Maybe “disarray”?) Who has benefitted? The president and the Supreme Court. Who has lost? The states and Congress.
- States have lost because the national government figured out it could usurp state power using money (the feds give states money if the states do what the feds want and states are now hooked on federal money). This is not necessarily a bad thing because, for example, the national government ultimately accomplishes national goals such as school integration or improved air quality by offering state and local governments money to meet those standards. It is abused, in my opinion, when the feds force states to enforce such decisions as a uniform drinking age and No Child Left Behind. Also, occasionally the feds will impose an unfunded mandate on states, thus forcing states to find a way to cover the cost of the federal requirement. To be honest there isn’t much states can do to protect their power from the feds as long as Uncle Sam controls the presses that print our currency.
- Congress has lost power because its members became more focused on winning reelection than on effectively running the country. I know that sounds cynical, but it is true. Beginning in the 1930’s Congress began allowing the president to attain greater power at Congress’s expense (a long story involving Franklin D. Roosevelt). Congress has also increasingly written laws that are very unclear and too vague, thus giving federal bureaucrats a great deal of authority to interpret and apply those laws. In The Affordable Care Act (Obamacare), for example, the word “secretary” was used about 3,000 times in a bill that was 2,700 pages long. That means Congress was specifically letting the Secretary of Health and Human Services interpret and implement those provisions.
- Presidents have become increasingly powerful. This is a trend that goes back to the 1800’s. A 1974 book by Arthur Schlesinger argued that we have created an “imperial presidency”, a presidency that dominates Congress and has almost total control over foreign and military affairs. Schlesinger believed presidential power had evolved to the point it far exceeded the desire of our Founders. Example: The Constitution specifically gives Congress the power to declare war and it has done so only twice in the last 100 years (WW I and WW II). But how many times have we been in “war” during the last 100 years (FYI: Since 1776 America has been at war 93% of the time)? All other instances of military intervention in the last 100 years were initiated by the president. So presidents have become increasingly powerful during the last 200 years, and you may be assured that presidential power has continued to grow and Congress has continued to largely roll over and play dead since Schlesinger’s 1974 book was published.
- The federal courts have become increasingly important. Alexander Hamilton argued that the courts would be “the least dangerous branch”, but that is not now the case and it has not been since the early 1800’s. However, the courts have been increasingly required to interpret poorly written and vague laws passed by Congress (they ruled on Obamacare at least a couple of times).
- As I said earlier, the states have lost a great dal of their power to the national government. We could debate whether this is a good or bad thing (all you have to do is offer a comment to begin the discussion), but there is no doubt it has happened. The national government now tells states how to treat prisoners, tells law enforcement officers what steps to take to remain within the framework of The Constitution, tells states how to distribute welfare funds, forbids state from discriminating against those with disabilities, requires states to follow clean air and water standards, and much more.
What should change?
Congress should start doing its job. For all of my professional career I’ve opposed term limits, but that may honestly be the only way to move Congress out of its state of gridlock. As I’ve argued previously, the first thing we should do is take money out of elections so that members of Congress are not obligated to those who give them the most money.
One specific thing Congress can do is begin imposing limits on executive orders. Again, Congress has increasingly allowed the president to do Congress’s work because they do not restrict executive orders. Presidents can issue all the orders they want, but every penny spent of the national government must be approved by Congress (called the “power of the purse”). Congress should tighten the purse strings.
A national conversation on the division of national and state power should take place soon. Do we want the national government’s power to continue to grow? Should states regain their lost powers?
Finally, and this part isn’t so easy, voters MUST become better informed. Most American voters choose a candidate or party based on one or two issues rather than examining candidates’ and parties’ views on a broad range of issues. As a consequence a large number of voters actually vote for candidates who oppose policies that benefit those voters. People wind up voting against their own interests.
Our fragile republic is in danger if the branches of government do not begin performing their Constitutional duties and if voters do not become better informed.