The Constitution has Failed


Give the framers of the Constitution a lot of credit for having an understanding of human nature that was surprisingly perceptive and ahead of its time. They understood well that, all other things being equal, men will more often act in their own perceived self interest than in the interest of others. They therefore understood that the key to establishing a long-lasting form of government that would provide both stability and harness the best parts of majoritarianism while protecting against its excesses, it would be necessary to provide a divided government with structural checks and balances in which the self-interest of one branch would continually work against the self-interest of the others in a never-ending give and take that would preserve not only the Republic but the institutions of the Presidency, the Congress, and the Courts themselves.


Today, thanks to servile Democrats and feckless Republican leadership, the system has revealed itself as finally and utterly broken. Forget for a moment how you feel about immigration policy. As it happens, my position is relatively close to the President’s. Nonetheless, the authority to set immigration policy is clearly delegated to the Congress by the Constitution and Congress has spoken – repeatedly and exhaustively – on this subject. President Obama’s Executive Order was not issued in a vacuum in which Congress had not acted, but instead was a direct declaration that the law would henceforth be enforced in a manner completely opposite from the written law on the books. Each and every person in Congress – Republican or Democrat, immigration hardliner or amnesty proponent, should have objected strenuously to this, if only for the sake of protecting the right of Congress to pass laws that will be enforced as written. Even if you agree with the President’s policy, if you are a member of Congress who cares at all about the rights of Congress to exist and do their job, you could not agree with the way the President went about accomplishing it.


The fundamental error which the framers made – which, in their defense, was perhaps not foreseeable at the time – was the way that the concept of “self interest” would change in the festering culture of Washington, DC in the early part of the 21st century. It was assumed by the framers that Senators and Representatives would always view the most powerful self interest they had as their right to write the laws of the country and to enlarge their own political power. They could not have foreseen – even in their most pessimistic visions – the fawning culture of lobbyists and the perks it would provide Senators and Representatives in the modern world. They could not have understood the way in which, as politics polarized, political parties and their self interest would ultimately become the only way to get and keep this power, along with all its attendant material benefits – nor the way that protecting a Congressman’s post-Congressional lucrative lobbying career would become the highest goal of nearly everyone who assumed the office.


And so we were treated to the spectacle, a few years back, of [mc_name name=’Sen. Harry Reid (D-NV)’ chamber=’senate’ mcid=’R000146′ ] smiling through a mouthful of s*** sandwich as he explained that it was a good thing that even though Congress had declared they were not in recess, the President had decided they were in recess anyway and had made a number of recess appointments. This was the day we all knew good and well that the concept of checks and balances, at least between Congress and the President, was good and dead. If members of the President’s own party would not stand up even for the right of Congress to decide when they were frigging in session and when they were not, they would never stand up to him on anything. And now we know that not only will they not stand up to him, they will affirmatively filibuster any effort to stop a clear affront to their own prerogatives, in order to keep their party apparatus and lobbying constituencies happy.

The new reality in America is this – unless Congress is someday composed of two-thirds members of the opposite party of the President (which is an increasingly remote possibility in our increasingly polarized country), the President can from now on do whatever he wants. Only the Supreme Court remains with the power and the will to stop him, and only then when it feels like it or is ideologically opposed to what he has done. The most democratically responsive branch of the Federal Government now exists for the almost exclusive purpose of determining who receives the largest share of the taxpayer money with which the taxpayers are to be bribed for their re-election. Before long the executive branch will be likewise emboldened to act in regular defiance of the judiciary, as it currently is of Congress, and who will stop it then?


Who knows? Maybe this new system under which basically the whole government is elected in a single election once every four years will continue to essentially function for some time. But it is no longer functioning in the way it was intended to function and the delicate system of checks and balances that has sustained the Republic for so long has been fundamentally disturbed. The Constitution had a good run – better than should have been expected, perhaps – but it is no longer serving to provide balance and stability in the Federal Government anymore.


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