AS the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.
Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?
Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
That, and much more, from a constitutional law professor.
We've come a long way baby.
H/T to Blackfive who adds:
Little in the piece surprises: disdain for the Founders, repeated references to America's legacy of slavery (that original sin that taints the country forever), and a desire that government should be liberated from all bonds so that it can pursue whatever good it settles upon. The only thing that surprises is the professor's assumption that a government, so liberated, will be inclined to pursue good at all.
For example, he writes that we should continue to be bound by the strictures he likes -- freedom of speech, religion, equal protection under the law, and a few others -- "out of respect, not obligation." Doubtless a government so respectful of these things that it required no obligations would be pleasant, but I have never seen it. There is a reason that lawsuits on these topics regularly reach the Supreme Court, which is that the government already fails to respect even these principles on a regular basis -- and that with the obligation in place.
Even more amazing is the claim that, under his proposed non-system, "The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief." It's bad enough that a professor of Constitutional law doesn't realize that Congress has a very strong Constitutional claim against the 'unchallengable power' he cites: the power to declare war. What is worse is his notion that a President freed of Constitutional constraints would bother to justify military action at all.
We live in interesting times, interesting times marked by the desire to remove boundaries put in place for sound reasons, reasons purposed in mitigating peril.
Great peril and yet, it's the direction some want to take us.