Bush Teaches Constitution
by Donald Devine

Good for President George W. Bush. It is about time someone taught the professors, lawyers and journalists what the Constitution is all about. In responding to last week’s assertion of presidential control over U.S. Attorneys, both a conservative newspaper editor and a prominent progressive constitutional professor used the exact same word, “astonishing,” to express their disbelief that a president could do such a thing.

Almost no one understands how the U.S. Constitution really works. When the new Democratic majority Congress recently began aggressively challenging the president’s right to fire U.S. Attorneys, the assumption was that Congress could file such a challenge and that the Supreme Court would decide who was right. 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 ultimate 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 refuse to allow U.S. Attorneys to enforce a contempt proceeding threatened against Chief of Staff Joshua Bolten, Congressional attackers 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 legislative attack-hounds think the Constitutional 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 purpose of every other form of government is to centralize power enough to eliminate conflict and to teach its citizens to rally to common solutions for important public issues. But the American Founders specifically rejected this view. Its justifying work, The Federalist Papers considered divisions, factions, and even conflict innate in social life. The only way to eliminate differences would be for government to extinguish liberty or make people all think the same. Eliminating liberty or forcing uniformity would be like eliminating air because it feeds fire and fire can be dangerous. Liberty can be dangerous too but it is essential to a healthy social life. Freedom and the differences resulting from it even must be protected as the “first object” of government.

If men were devils, the Founders argued, no good form of government could be devised because they would corrupt it. If they were angels, no government would be necessary to control them because they would always act virtuously. But in a government of real people ruling over real people, the Founders proposed that ambition must be made to check ambition by placing leaders into different power institutions that counteract each other’s dangerous ambitions. The preeminent way to limit ambition is to have the people control the rulers through elections. “A dependence upon the people is, no doubt, the primary control on the government but experience has taught mankind the necessity of auxiliary precautions.” These further “precautions” were governmental institutions that were popularly based but also had some independence from popular passion to act on their own for the public good and to check one another.

Congress, as the more direct representative of the people and creator of all law, might seem the center of power in the government. But with this great grant of power, two houses were created, one based upon democratic population and one based upon equal state representation to dilute this potentially greatest power. Further, a president was granted a veto power over every action that could only be overridden by a two-thirds majority in each house, a very difficult consensus to achieve in a representative legislative body. With all of this division in internal power and an external veto, Congress is normally limited in what it can accomplish.

So, is the President supreme? The veto is certainly a powerful weapon. Yet, it is a negative rather than a positive power. He cannot pass a law or act without Congressional authorization or at least forbearance. While presidents have acted on their own for what they proclaimed as emergency situations, this executive discretion was balanced by giving Congress the power to impeach him or withhold the funds for everything he wants to do. Courts too can overrule his decisions. Well, then, are judges made so independent with life terms and the ability to interpret laws and the Constitution, supreme? Does the Supreme Court not have the “supremacy clause” to support its claim to ultimate power? No, courts need the executive to enforce every ruling they issue, which presidents such as Andrew Jackson and Abraham Lincoln have sometimes refused to do—and Congress must grant appropriations for them to be able to hold trials and punish those convicted. Congress even has the power to set the appellate jurisdiction for the Supreme Court, the vast majority of its current authority.

All of this is balanced by independent states, which were assumed in the beginning to have the real democratic power of the people behind them because they were closer to them and trusted more. Clearly, it was the states that were the ones primarily bound by the new Constitution, but they were left significant independent power, whose limit is in debate up to the present day. Importantly, only the states can amend the whole Constitution by two-thirds vote and could then themselves ratify their own proposals by three-fourths vote. They could change the whole nature of the system without any participation from the other three branches, as they did to establish the Constitution in the first place.

The Civil War most clearly demonstrated how divided power works under the Constitution. 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. With the only agreed upon solution voided, the Senate, House and president checked each other so successfully they could not agree on an alternative. The court solution prevailed. But judicial supremacy did not last. Frustration with that policy led to the election of Abraham Lincoln and a more Republican Congress to break the logjam. But the Southern states refused to accept this possibility and exercised their claimed right to secession, which led to a war between the states. To execute that war, Lincoln exercised broad executive powers and even abolished appeals to the courts, holding 13,535 prisoners without habeas corpus protection—including 31 Maryland state legislators (by comparison, 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.

So did Lincoln’s power to suspend even habeas corpus prove the executive is the real power? But the strongest American president was assassinated and followed by the weakest, Andrew Johnson. Significantly, the succeeding Congress was the strongest ever. Indeed, it came within one vote of removing Johnson from office for merely exercising the essential executive power of removing appointed officials (which is why Bush acted early). While Johnson survived in office, the president was powerless. Congress overrode the constitutional separation of House and Senate—which the Supreme Court ignored--by creating a joint committee of party leaders from each house that made all decisions which were adopted overwhelmingly by party-line vote, assuring the veto became a nullity.

That is how the Constitutional checks and balances really work. In fact, no one is in charge. In different circumstances, one institution is more powerful and other times another is, sometimes overwhelmingly powerful. But because there are separate powers the others can overcome the previously powerful institution. The Supreme Court took hold of the whole pre-civil war policy process but was ignored a few years later. The states dominated in the early years and caused civil war. President Lincoln was almost a dictator but was followed by an almost helpless Johnson. Lincoln dominated Congress but the Reconstruction Congress simply ignored the president. At any one time, one institution dominates—as the Supreme Court and national government tend to do today—but the instrument the Founders created always allows for another day and a different correlation of constitutional forces.

Even most Americans would not recognize the reality of the Constitution as the Founders created it. At each era, the people are convinced the existing balance of power is the constitutionally correct one. The idea that there is no single, ultimate source for power would probably be denied by most. The Founders’ idea was so radical that The Federalist Papers called it a “new science of politics”—the idea that a people could disperse power over a large expanse of territory, into a divided legislature, an independent court, a restricted executive and sovereign states and still have a successful government. To work, the House, Senate, President, Supreme Court and subordinate courts, ultimately 50 “sovereign” states, and an amendment process that can change all of the rest—all of these need to agree or defer or action will be blocked by one or more of the others.

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. True, the Founders recognized that if each branch pushed its powers to the limit, the system would break and that is just what happened in 1860. But the Bush action is well short of that. The president, however, could learn a bit more from the Founders’ radical thinking. The amity between the branches is also torn if the government does too many controversial things. The more it does the less it can do well. No one in his right mind would divide power into so many parts if the idea were for the government to be the major decision-maker for society. That is why the Founders limited the powers of the national government and adopted the Tenth Amendment.

Everything about the Constitution is mysterious. It is totally overshadowed by the Declaration of Independence with its universally celebrated and festive holiday on the 4th of July. Who even knows when Constitution Day is? In 1940 Congress set it as the fourth Sunday in May to celebrate the opening of the Constitutional Convention. In 2004, on an impulse of Sen. Robert Byrd (D-WV), it was moved to September 17 th to celebrate the closing of the convention. Either way, no one remembers even though Byrd--being a big government constitutionalist, an oxymoron if there ever was one--required that everyone receiving federal aid must celebrate it.

Since no red-blooded American will celebrate on a government whim, we the people should set a new day, July 17th. After establishing independent powers at the national level, it was the day the Constitutional Convention defeated the proposal to make all state laws reviewable by the national government. Even James Madison thought this would be “essential” for he too thought rationality demanded a single central source for power. He was devastated but as the Constitution evolved through the deliberations of many different people with conflicting interests, he began to understand what they had created. There was a central government but it was divided and therefore able only to do a few things well. It would be overwhelmed if it tried to do too much. Most decisions would have to be made in a second realm--regionally, locally and privately. Madison even came to credit “providence’ for this whole that was better than the reason of any one intellect and he became the main expositor and proponent of the new “double security” federal checks and balance systems.

President Bush has provided a great learning experience by demonstrating executive power. He should now devote the remainder of his term working on the second realm—cutting the national government back down to size. As the early 2008 campaigning demonstrates, all of the candidates assume an all-powerful, all-knowing, all-seeing government to solve every problem imaginable, from infant care to senior angst, for daddy to make all the boo-boos right. The Founders created for a hardier individual in a freer and more responsible society. It is about time to start rebuilding the real Constitution. That would deserve a real celebration, fireworks and all.

Donald Devine, the editor of Conservative Battleline Online, 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.