The current polarization of American politics is causing stress to the Constitution.
Most Americans regard this document with reverence and, in the words of the federal oath of office, would willingly “preserve, protect and defend” it.
So why is it in question?
The Constitution is more like an operating manual than a document setting national policy. Obviously, in a world without telephones, railways, airplanes, automobiles and the Internet, it would have been impossible for a group of people in the 1780s, no matter how wise, to develop laws that could apply to today’s world.
And the Constitution does not even provide a complete set of procedural directives. For example, it is silent on what rules apply should a state wish to withdraw from the United States. Abraham Lincoln, as commander in chief, decided that its silence meant that no state could withdraw. That interpretation would only be validated by the Civil War.
One provision ”“ the Commerce Clause ”“ says that the federal government may pass laws to govern economic matters, provided they have an interstate effect.
But what matters have an effect on interstate commerce, and who gets to make that decision?
Those questions are now before the U.S. Supreme Court, which is expected to decide if the requirement for people to purchase health insurance under Affordable Care Act ”“ opponents call it “Obamacare” ”“ is covered by the Commerce Clause.
The Court believes it gets to make that decision, because in 1803, it ruled in one of the most important decisions in American history that it alone can determine what it constitutional.
In the current case, the Constitution is quite unclear, so the judgment about what it means for the health care law may be made by as few as five unelected judges. A decision by a narrow margin could serve to fuel even more partisan controversy without finally resolving the issue.
To some observers, in the absence of legal clarity, the decision is more political than legal. Congress, composed of 535 elected senators and representatives, makes political decisions.
If the Constitution is unclear, then the decision could be left to Congress. That’s what happened during the Civil War. But the reverse happened after the 2000 presidential election, obviously a political matter, when the Court picked the president by a five to four vote, despite Constitutional provisions that might have left the decision to Congress but which would have prolonged the uncertainty.
Another major constitutional issue does not involve the Court. The Senate is supposed to make decisions on most matters by a majority vote. But these days hundreds of votes are blocked by the Senate rule requiring 60 votes to allow a proposal even to be debated.
This is the filibuster rule, a procedure that was established in 1917, 128 years after the Constitution was adopted. For most of its history, it was used once or twice a year, but the Senate Republicans, in the minority, use it almost daily. If the tables were turned, it is virtually certain that the Democrats would do the same.
In effect, the Senate has amended the Constitution to allow for a “super majority.” It use threatens to paralyze the legislative branch.
In addition to the possibility of the Supreme Court making political decisions that should be left to Congress and the Senate itself blocked from making many decisions, the president gets a say on the Constitution.
Presidents issue have issued so-called “signing statements,” when they approve some bills passed by Congress. The president lets a bill become law, but, at the same time, he says that he will not enforce a part of it that he regards as unconstitutional. That means a law is not really the law, a situation that is confusing and probably dangerous.
The situation might even get worse. A judge of the powerful federal appeals court in Washington, D.C. has ruled that the president has the right not to enforce a law passed by Congress, signed by a predecessor, and found to be constitutional by the Supreme Court. If in his sole judgment that law is not constitutional, he can refuse to apply it including not spending the funds that have been duly appropriated for it.
The Constitution, written by people who rejected the powers of the British king, gave law-making power to the Congress with a limited veto power for the president and no role for the Court. The Supreme Court is limited to saying if a law is allowed by the Constitution, but not if it is good or bad.
Failure to return to these original understandings is a recipe for prolonged political chaos.
— Gordon L. Weil can be contacted at gordon.weil@weilnet.com.
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