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Teaching the Constitution
Donald Devine
August 1, 2007
It is about time someone taught the Constitution to the professors, lawyers
and journalists. In responding to President Bush's recent assertion of
presidential control over U.S. attorneys, both a conservative newspaper editor
and
a progressive professor used the exact same word, "astonishing," to express
disbelief that a president could do such a thing.
Almost no one understands the U.S. Constitution. When the new Democratic
Congress recently began aggressively challenging the president's right to fire
U.S. attorneys, the assumption was that Congress would file such a challenge
and that the Supreme Court would decide it. Even if the president ultimately
prevailed, he would be hobbled for the rest of his term fighting in court to
convince the ultimate power he was right.
Contrary to how the liberal professors teach the Constitution, the courts are
not the final power. The U.S. has a separation-of-powers government where no
one branch has the ultimate power.
When the White House announced it would not allow U.S. attorneys to enforce a
contempt proceeding threatened against his chief of staff, congressional
leaders were outraged. Senate Majority Leader Harry Reid called it "an
outrageous abuse of executive privilege," Sen. Charles Schumer said the
president was
"hastening a constitutional crisis," and Rep. Henry Waxman moaned this "made
a mockery of the ideal that no one is above the law."
Did these hyper-aggressive legislators think the Framers would leave the
president defenseless against harassment by Congress? Did they think the
president reported to the Supreme Court? Professor Mark Rozell of George Mason
University apparently did, saying this would mean "the president's claim of
executive privilege trumps all." Well, prof, no it does not. The Constitution
has a
solution. While no court can touch him, Congress can impeach the president.
That is how the law is supposed to work.
One cannot blame them, really. The Constitution goes against every conception
about how government and society should work. Who does not believe someone
must be in charge? As professors put it, sovereignty must be vested somewhere.
Otherwise an organization has no center and supposedly cannot work.
But the U.S. Constitution is based on the principle of separation of powers,
where no one power rules but where the different institutions check and
balance each other's power. That there was no center to resolve differences is
why
every intellectual of the Founding era — and every era since — predicted it
would fail. The drama of the Constitution is that such an "illogical"
arrangement is in fact the world's longest lasting government.
The Civil War most clearly demonstrated how division of power really works.
In 1850, the Supreme Court — in its first claim of unconstitutionality
unrelated to protecting its own judicial independence — declared the Missouri
Compromise over slavery void. The court solution prevailed but judicial
supremacy
did not last. Frustration led to the election of Abraham Lincoln and a more
Republican Congress to break the logjam. But the Southern states refused to
accept this and exercised their claimed right to secede, which led to the War
Between the States.
To execute that war, Lincoln held 13,535 prisoners without habeas corpus
protection — including 31 Maryland state legislators (by comparison, Mr. Bush
was a piker). When the Supreme Court ruled that the president had acted
unconstitutionally in exercising that power, Lincoln refused to allow
enforcement of
the judicial order.
That is how checks and balances really work. No one is ultimately in charge.
In different circumstances, one institution is more powerful but separate
powers allow flexibility to overcome the previously powerful. The Supreme Court
set the whole pre-Civil War policy but was ignored a few years later. The
states dominated in the early years and caused civil war. President Lincoln
responded almost as a dictator, ignoring habeas corpus, but was followed by an
almost helpless Andrew Johnson. Lincoln dominated Congress but the
Reconstruction Congress simply ignored the president.
At any one time, an institution dominates — as the Supreme Court and national
government tend to do today — but the Constitution always allows for another
day and a different correlation of forces.
Even most Americans would not recognize the reality of the Founders'
Constitution. President Bush has provided a great learning experience by
demonstrating executive power; but the Constitution is much more. It really is a
miracle
that it all works. No one in his right mind would divide power into so many
parts if the idea were for the government to be the major decisionmaker for
society. That is why the Founders also limited the powers of the national
government and adopted the 10th Amendment.
When one branch pushes too hard, the others strike back. This is what
happened with the U.S. attorneys issue recently and many times throughout
American
history. That is why the Constitution survives. It is flexible enough to take
whatever comes.
Donald Devine was the director of the U.S. Office of Personnel Management
from 1981 to 1985 and is the director of the Federalist Leadership Center at
Bellevue University and editor of Conservative Battleline Online.
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