On this Constitution Day, we can’t help but think of the many ways our federal government is acting contrary to the Constitution’s dictates and norms. Sorry, but it’s not a great time right now for fidelity to our Constitution.
I was rewatching the excellent “John Adams” series on HBO Max a few weeks ago, and I couldn’t help but notice how much of the story involved Congress acting or not acting, Congress sending or recalling ambassadors, Congress making decisions. And how rarely the series mentioned a president acting. Even when Adams was president in the series, it was about whether he would sign something Congress had passed. It was never about Washington’s agenda, and only rarely about President Adam’s agenda. The power was with Congress.
Much of that story predates our Constitution. But the Constitution, too, gives Congress the central role that today’s lawmakers seem reluctant to exercise. The legislative branch is the Article 1 branch, and the Constitution gives more power to the legislative branch than to the other two branches. But you wouldn’t know that to watch our current members of Congress cowering, hiding and running away any time they can.
And when Congress doesn’t do its job, your liberty is at stake.
The Supreme Court was not wrong, on our view, to affirm the unitary executive theory; i.e., the Constitution gives the president broad authority to control the entire executive branch.
The problem is that the executive branch has amassed significant power far beyond what the Founders stipulated in our Constitution.
How did this happen? Congress has effectively surrendered its powers to the executive branch. Congressional Democrats too often deferred to Biden, just as congressional Republicans now defer to Trump.
Add all of that to the public perception that the people (instead of the states) elect the president, and you have a recipe for Caesarism, where a leader concentrates authority in their own hands, claiming a direct mandate from “the people” while weakening legislatures, courts, and other checks.
Caesarism is possible when the legislative branch, whether in ancient Rome or modern America, abandons its duty to provide a check on the executive. Left unchecked, a popular elected executive can marginalize all other branches of government, with the support of the people. It is the opposite of the system outlined in the Constitution.
When Supreme Court Justice Antonin Scalia testified before Congress on October 5, 2011 (you can watch it here or read the transcript here), Scalia said that written guarantees in bills of rights are worthless if political power can be concentrated in one person or one party. Scalia reminded us that the very word “constitution” means “structure,” as in, “a person has a strong constitution.” Scalia’s point was that the Bill of Rights cannot secure liberty without a structure that prevents the concentration of power.
So, on this Constitution Day, in additional to being thankful for the Constitution, we should all recommit to its structure and demand that our elected officials do the same.