Pro Logica

August 4, 2010

What’s wrong with the U. S. Constitution?

I.  Complaints.

Many news articles over recent years have bemoaned the low standing of the Federal Government in the eyes of its citizens and Congress fares the worst where only about 25 to 30 per cent of the people polled feel that Congress can be trusted to do its job effectively; this has dropped to 11 per cent recently.  Some have even proposed a constitutional convention.  Now, a constitutional convention is a serious undertaking and in my opinion should not be attempted for  petty reasons; it is warranted only for a change in the type of government–like going from a republic to a constitutional monarchy, a rearrangement of governmental functions–like going from a separation of powers system to a parliamentary system, or for simplifying its language after multiple amendments make some of the sections confusing or even contradictory.  I don’t believe that our American system is in need of any major overhaul yet; so the answer to this post’s topical question is  “nothing”.

Let’s examine the complaints a bit further.

The major complaint seems to center on Congress’s inability to operate effectively.  Consider  health reform.  Most everyone knows that our current system is inefficient, overly expensive and abused by many of its participants, i.e., highly in need of reform, and it has been this way for many years.  When the Democrats had control in 1992, health reform was attempted but was primarily blocked by the Republicans, and the same is happening this time; however, the Democrats persuaded all but a few of their cohorts to vote for a health bill and enacted the same–no Republican voted for the bill.  Personally, I believe this bill is currently unacceptable for many reasons even though some Republican ideas have been incorporated.   The real problem is not the form of government but the inability of the two parties to negotiate and compromise and come up with an effective bill for the good of the country.  I have often wondered why our two major parties never consider the fact that the American voters hardly ever let the President and Congress be controlled by the same party for any length of time–could it be that they don’t believe that either party has their country’s welfare at heart.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–Whomsoever the voters elect can be recalled by those voters.  If Congress is not filling the expectations of its constituents, the people of the United States of America (voters) have only themselves to blame.  It is to be noted that the Constitution does not forbid recalls–whomsoever the voters elect can be recalled by those voters.

The major complaint about the Judicial Branch is that it makes law–“Roe vs. Wade” is a good example (the ruling’s  conclusion might be stated as “No state of the United States of America shall prevent any female citizen from having an abortion).  I have outlined the general status of a Supreme Court (SC) ruling in an earlier blog on the basis of the separation of powers between the branches, but let’s  review what the U.S. Constitution says about the SC.  As explicitly stated therein the SC resolves disputes (Article III, Section 2 and Amendment XI–cases of law and equity arising under  the Constitution, its Laws and ratified treaties; since “equity” in this context cannot refer to its financial meaning, it must refer to fairness of treatment which poses the problem of the necessity of the ” equal protection of the laws” clause of the 14th Amendment).  Due to their equal status, a SC ruling can become a legitimate Congressional law in only one of two ways: Congress passes a law which, in effect, requires the Executive Branch to enforce the ruling or Congress does nothing and the Executive Branch does enforce the ruling.  In the situation where the SC ruling declares a law to be unconstitutional, if Congress does not rescind the law and the President of the United States of America (POTUS) continues to enforce the law, the SC ruling is essentially nullified until the POTUS (the same one or someone different) at some later time decides to enforce the ruling or Congress (the same one or a different set of law makers) decides to pass a law legitimizing the ruling.  POTUS Obama was thoroughly convinced that the SC’s McCain-Feingold ruling was wrong but he could have said, “As the President of the United States of America, I disagree with the ruling of the Supreme Court for these reasons…(states his reasons)…and until Congress changes or rescinds this law, I will continue to enforce it as it is written”, a statement that is fully constitutional.   The kingpin in this process is Congress since it has the power to impeach the  POTUS and keep impeaching successors until it gets one to do its bidding.  Incidentally, if Congress thought that the SC ruling was egregiously unconstitutional, it could impeach those justices who concurred in that ruling.  Unfortunately, our two-party system has a tendency to under use the threat of impeachment as a governing tool.  When the SC ruling involves a state law and the ruling declares that law to be unconstitutional the same mechanics can still happen but what if the State does not accept the SC ruling and Congress does not pass a law legitimizing that ruling and the POTUS cannot effectively enforce the ruling or even decides not to enforce the ruling.  Again a SC ruling can be effectively nullified, at least for the time being.   One might raise the question, “What about those Federal marshals who carry out the judges orders?”  Remember, the Judicial Branch has no enforcement powers, those Federal marshals are employed by the Executive Branch and under the orders of the POTUS.  He has the power to prevent them from carrying out any orders given by the judges.

The SC ruling in the case “Roe vs. Wade” is just one example of many cases where the SC has been accused of legislating.  The current Chief Justice has stated in his confirmation proceedings that “‘Roe vs.Wade’  is settled law” and he is correct since all States have acquiesced to that ruling, Congress appropriates money to support the abortion activities of Planned Parenthood  and similar organizations, and the POTUS has dispersed funds to Planned Parenthood.  Yes, “Roe vs. Wade” is settled law but it is not Congressional Law since there has been no bill passed by Congress espousing this particular ruling.  A puzzling aspect in this picture is the presence of the Hyde Amendment.  If it does say what it is purported to say, how can Congress and the POTUS justify their give-away of Federal funds to an organization like Planned Parenthood, which, in fact, do perform elective abortions?

The legitimacy of elective abortion is an example of a de facto law, in English, a law in fact but not explicitly written as a law.  Some States still retain their criminal abortion statues and it might be interesting to see what would happen if one of them actually challenged the Federal Government for I can envision many obstacles to Federal enforcement.  Back to the point, the SC cannot legislate but they can be the source of de facto laws.  Those who oppose particular de facto laws originating in the SC must either win the support of the other two branches or wait for a reversal ruling from the SC itself.

In summary and only on a procedural basis, a SC ruling can become a de facto law only with the cooperation of a second branch of government and without opposition from the third branch.  Of course, this process does not pronounce any judgment as to the worthiness or unworthiness of the law itself.  Historically, the world is and has been rife with bad laws   and will probably continue to have them far into the future.

There are two major complaints  concerning the executive branch but they are usually directed against the POTUS; not enough emergency powers and too much overall power.  It shouldn’t be difficult to see how the executive branch complaints can be resolved within the Constitutional dictate of the separation of powers.  The Executive Branch of the Federal Government is the only branch having the authority to enforce all the provisions of the U. S. Constitution, in fact, the POTUS is the only member of the Federal Government required by the Constitution to take an oath in defense of the Constitution and its Republic.

As to the POTUS not having any emergency powers. this clam is patently false, since the Executive Branch is fully independent from the other two.  The POTUS can write presidential directives with the full expectation that they will be carried out by his/her employees, even if they do not follow a strict reading of the U. S. Constitution.  Proper manners indicate that a declaration of some sort be presented to the other two branches stating the precise reasons for the POTUS’s action in order to facilitate a unified government response, but there is no constitutional requirement for it.

So, what happens next?  If the SC agrees with the POTUS, they can refuse to hear any case that questions the enforcement or the constitutionality of that directive, and if they disagree they can hear such a case and render their disagreement in a ruling.  Congress, being totally independent from the other two branches can also act independently.  If they agree with the POTUS they need to do nothing, thus nullifying a possible SC ruling to the contrary; however, if they disagree to the extent that something different must be done, they must do something positive, even if the SC has ruled against the POTUS.

And just what are the positive things that Congress can do?  First, they would probably try to discuss their differences with the POTUS in order to resolve their disagreement and have a common understanding of the needed action, probably involving the rewording or cancellation of the concerned directive or the passage of a law or some combination.  In this discussion, Congress can use the threat of impeachment as a tool for persuading a president to change or cancel his/her directive.  It was interesting to note the Republican Party Congressional members’ complaints about President Bush’s memos on how he planned to enforce some particular laws passed by Congress; many members stated that he was subverting Congress’s intent.  Did any of them suggest impeachment?

Similarly, if Congress thinks that the  POTUS is wielding too much power they can pass a bill limiting that power.  Since the POTUS  would probably not sign the bill, the bill will become law after ten days or if the POTUS veto the bill, Congress could then override the veto. In either case the bill limiting presidential power becomes law and then the POTUS could then be impeached for not enforcing the law.

II.  A short summary of the basic rules of operation of the Federal Government.

1) The U. S.  Constitution authorizes three independent branches of the government.  Congressional bills, presidential directives and SC rulings are limited only by the Preamble to the Constitution when there is no specific wording which directly applies.

2) The SC cannot initiate any rulings unconnected to a dispute brought before it and has no power of enforcement for any of its rulings.

3) While Congress is the only branch which is authorized to write laws, a presidential directive by itself or enforcing a SC ruling can become a de facto law when Congress does nothing to stop that enforcement.

4) Congress trumps the other two branches by having the authorization to remove a president and can keep removing them until they get a president who enforces their laws.  They also can impeach any member of the judicial branch–good behavior can certainly be defined by the legislative branch.

5) As the amended U. S. Constitution now states, the American people vote for the members of Congress and, therefore, control its make-up.

6) States, having limited sovereignty but, nevertheless, a sovereignty recognized by the U.S. Constitution, can challenge any Federal action that does not pertain to expressly written provisions in the Constitution.

III.  So, what’s wrong with the U.S. Constitution?

As stated at the beginning of this essay, there is nothing wrong with the U.S. Constitution as it is written but what is wrong is:                                                                                                    1) The U.S. citizen’s and politician’s understanding of how it is supposed to work and acting as if their wrongful interpretations are constitutionally correct.                                                 2) Political parties prioritizing power over the good of the country.                                             3) Political fanatics, both left and right, who know positively what’s good for the American people.  Unfortunately, these are the people who do the most preaching, and yes, it is almost a religion to them.                                                                                                                     4) Dare I say it but voter incompetence.  I must confess that when voting for a candidate who has very little background to judge any of his future congressional behavior, a voter may not know what to expect, but when voters keep electing the same incompetents election after election something is wrong.                                                                                      The only constitutional change that could possibly avoid these wrongs would be a one party dictatorship (of which a monarchy is an example) simply because they could rule without needing the support of its people.  Need I say more.

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