Bottom line: Here’s the biggest problem with the Constitution

One in a series of articles. You can read the whole series here.

Pop open the champagne bottles. This is what we’ve all been praying for — the final installments of “Imperfect Union.” My plan is to review a few points, express a few closing thoughts, thank you for your patience and then speak only to my wife and kids for a few weeks. But I ran on so long, that we’re breaking it into two parts.

The last installment ended with a discussion of the never-actually-utilized provision of the Constitution that allows for a new constitutional convention to be assembled, upon the petition of two-thirds of the state legislatures, to propose amendments. Such a convention could, as the Philadelphia convention did in 1787, exceed its mandate and propose major changes or, if they really went rogue, a whole new document.

You should know that a far deeper constitutional thinker than myself, Professor Sanford Levinson of the University of Texas Law School, wrote in 2006 a book-length argument asking readers to join a movement for a new convention along those lines. The book was titled “Our Undemocratic Constitution.” As you might infer from the title, Levinson portrays the Constitution as anachronistic, the product of a society that didn’t hold our contemporary attitudes about democracy.

It’s hard to disagree on some level. The Framers held many attitudes that, ripped out of historical context, are an assault on modern sensibilities. The slavery stuff is probably the worst (although some of the framers were anti-slavery). As for democracy, they believed that a bit of it – basically the popular election of members of the House – was necessary and good. But all other officials of the new national government they designed were to be responsible only indirectly to the governed, with one or more layers of respectable gentlemen standing between the average (white, male) voter and power. The word “democracy” appears nowhere in the Constitution. And when it pops up in comments of the Framers, it’s almost always a reference to the importance of guarding the new republic against the dangers of too much democracy.

Disrespecting the Framers isn’t the point. Yes, by today’s standards, they were racist, sexist, elitists who also envisioned a western expansion of the nation but made no reasonably humane provisions to mitigate the impact that would have on the Native Americans. But it isn’t worthwhile to blame the Framers for being men of their time, nor should we disdain the risks they took and the effort they put forth to help launch what became our nation.

And anyway, slavery is long gone. Blacks and women can now vote. Senators are now directly elected. All of these improvements were made possible under the amendment procedures that the Framers built in. The president is still chosen by the absurdly complex and technically indirect device of the Electoral College. But the Oval Office nonetheless ends up being occupied most of the time by the choice of the voting plurality, although I would say that most of the time isn’t good enough. Because this was a presidential election year, I devoted several installments to the vagaries of the Electoral College. I would certainly vote to do away with it. But it is hardly the biggest problem our nation faces.

Too many choke points

The bigger problem – at least in terms of the structure of the government – is that we have a system that’s built for inaction. Too many veto points. The House can veto the Senate and vice versa. They are elected on different schedules and represent different populations (in the sense that senators represent states of varying sizes, congressmen represent gerrymandered districts of equal size). When the chambers are controlled by different parties, which has become almost the new normal, they don’t agree on much. And their willingness to compromise seems to have shrunk.

That’s not the Constitution’s fault. It’s what I called a change in the norms of U.S. politics. But the Constitution provides no method of breaking the impasse (as other systems of government generally do). You can just as easily note that it’s not the fault of a highly ideological member of Congress, that he prefers inaction to compromise. It’s just that when both situations obtain, you get gridlock. If we did have a chance to consider structural changes in our system of government, I suspect we would try to build in some new ways to overcome such standoffs.

Or maybe not. You can argue if you like that the Framers wisely wanted to make it hard to pass laws because that government is best that governs least. Some on the right may believe that a government unable to do much is a good thing and what the Framers intended.

The same argument often extends to the idea that the federal government already does a great deal more than the Framers ever intended. This is the “explicitly enumerated powers” idea, backed up by the 10^th Amendment, which says that any powers not delegated to the federal government are reserved to the states and the people. This leads to the conclusion of so-called “tenthers” that the federal government has become unconstitutionally involved in many, many areas over which it has no constitutional authority.

There are at least four problems with this line of argument, one historical, one legal, one political and one practical:

Historical: If we interpret the Framers in the context of their own time, the system they designed was actually far more powerful and capable of action than the one under the Articles of Confederation, which the Constitution replaced. The Framers were the big federal government guys of their time.

Legal: By including in the enumerated powers of Congress general phrases like “provide for the general welfare” and “regulate commerce” and to “make all laws necessary and proper” to carry out these responsibilities, the Framers left open a hole for future generations to decide what the true limits of the powers are.

Political: If, as some tenthers argued, Obamacare was unconstitutional because the Constitution nowhere delegates the power to Congress to “take over” health care, they must also oppose Medicare and, not too far down the same path, Social Security and, for that matter, natural disaster relief and the maintenance of permanent overseas military bases. It would be the only intellectually honest thing to do. But it would also be political suicide.

Practical: Among the Framers’ goals was to organize the new nation to defend itself against what they assumed would be infrequent foreign invasions. The Framers saw a nation sheltered on one side by an ocean and on the other side by a vast wilderness, not a world of jets and intercontinental ballistic missiles. They understood that the United States would be at peace or at war, not a nation in perpetual military semi-war action. In the Framers’ vision, the nation’s military would consist of state militias, which could be called into national service in time of war. Wars would begin with official declarations of war by Congress (something the Congress hasn’t explicitly declared since World War II). Such declarations would switch on the president’s powers as commander-in-chief.

Their assumptions were reasonable at the time and their scheme may have been a pretty good one for the world as they understood it. It has little to do with the reality of the United States as a modern, global superpower. To function in that new reality, the United States has pretty much had to ignore the constitutional plan, while pretending to respect it.

When you take into consideration the kind of Alphonse-Gaston situations such as we now face with the “fiscal cliff,” or the biennial raising of the debt limit, where actions that hardly anyone favors will occur automatically if the parties can’t compromise to call them off, the idea of a government that can’t act becomes ever more bizarre and dangerous.

But wait, the opportunities for inaction are just beginning.

If the two houses manage to agree on something, they can be vetoed by the president, elected on still another basis. In the immediate situation, presidential veto power isn’t much of an issue because the president is aligned with the Senate, which his party controls. But we are always just an election away from having (as Minnesota did for the past two years) an executive from a party that controls neither house, which makes the veto all of a sudden a major choke point, especially in an era of few compromises. In the absence of a veto-proof majority in both houses, there is no structural guarantee of getting around that form of the deadlock.

If the president and the Congress manage to get together to enact and sign a law, they can be vetoed by the Supreme Court. (It’s true, of course, that this power is not explicitly enumerated in the Constitution, but even for those who believe that no powers exist other than those enumerated, this particular un-enumerated power is clearly established by 200 years of use, beginning with the particularly messy but nonetheless revered case of Marbury vs. Madison.)

The Supreme Court, of course, does not explicitly “veto” anything. As the keeper of the Constitution, the court (or any five of its nine justices) imposes an (often highly debatable) interpretation of the Constitution in such a way that it has the effect of vetoing (or sometimes just amending) a law that has been passed by the Congress and signed by the president (who has, himself, taken a vow to uphold the Constitution).

There is something fundamentally weird and anachronistic about a 21^st century democracy turning to the most undemocratic, unaccountable branch of the federal government to answer our most troubling policy questions.

On top of that, we are asked to accept and believe that the court will find those answers by studying words written by 18^th-century men and divining how they (the 18^th-century guys) intended for us to deal with situations that they had, basically, no ability to imagine. (Law Professor David Law of Washington University in St. Louis referred to these occasions on which the justices channeled their inner Madisons as “historical ventriloquism.”)