Governmental practice often ignores the Constitution


The widening gulf between governmental practice and constitutional principles, the handiwork of both Democrats and Republicans, liberals and conservatives alike, puzzles, frustrates and angers the citizenry. It inspires serious concerns about the future of American Constitutionalism, and leaves many to ask:  What can we do about this state of affairs?

In our system of limited powers derived from the Constitution, it is worth remembering that governmental actors have no authority to exceed their grant of authority, abdicate their constitutional assignments, or usurp powers vested in another branch of government. Otherwise, they are violating constitutional principles, as well as the will of the sovereign people who, in their ratification of the Constitution, gave express approval to a particular Constitution, with a particular allocation of power and a particular division of responsibilities, and no other. 

The fault lines that exposed governmental disregard of the Constitution, particularly in the behavior of the political branches, emerged decades ago, as Congress increasingly abdicated its constitutional powers and responsibilities and acquiesced in the face of presidential aggrandizement and usurpation of power. The immediate context for the rupture was the Cold War and the conduct of foreign relations and national security. The rationale for the rise of presidential domination, and congressional surrender, lay in the premise of a state of emergency triggered by the perception of an ongoing Russian threat to the United States. The threat justified, in the eyes of Washington policymakers and many Americans, the exercise of broad, unilateral executive powers, to be exercised by the president, whose relative experience, expertise, judgment, character and temperament would inform his decisions. 

The shock to the constitutional blueprint was measurable. James Madison had written in Federalist No. 51 that, in a republic, Congress was the “first branch” of government, the recipient, by far, of most of the nation’s governing powers. This legislative primacy was conspicuous in domestic affairs, but also in the realm of foreign affairs, for the Constitution vested in Congress the lion’s share of the nation’s international relations powers, including the sole and exclusive authority to decide when the U.S. should initiate war, and lesser military hostilities, against a foreign nation. In the Cold War years, American glimpsed the future: the constitutional arrangement for foreign affairs would become largely irrelevant. Soon, presidents of both parties, against the wit and wisdom of the Framers, who feared, opposed and drafted the Constitution to prohibit unilateral executive control of war making and the conduct of foreign affairs.

The rise of the Imperial Presidency, built atop the premise of purported foreign relations requirements, reflects a radical departure from the Constitution, but it soon spread to the domestic realm. Sweeping claims of executive privilege and presidential immunity—from indictment, prosecution, judicial orders and legislative subpoenas—which find no footing or foundation in either the text of the Constitution or the debates at the Constitutional Convention, accompany presidential assertions, beyond the Framers’ contemplation, of a king-like presidential prerogative power, and authority to wrest from Congress, the authority to tax and spend.

The constitutional landscape has been littered with the wreckage of the separation of powers and checks and balances doctrines, both central to maintaining the integrity of our constitutional system.  Citizens are entitled to wonder about the relative strength of the Constitution, designed to corral the exercise of governmental power.  They are entitled to ask, moreover, whether their rights and liberties, broadly protected by the Bill of Rights, are sufficiently secure to preserve, for example, freedom of speech, freedom of assembly and freedom of religion, as well as privacy rights, equal protection and due process of law. And there is ample justification for deep-seated concerns about the future of the First Amendment guarantee of Freedom of the Press, under continued assault by elected officials, yet viewed by the founders as essential to the republic for, without it, the people would have little ability to be informed about governmental programs, policies and laws, and thus denied the fundamental right and duty to hold government accountable.   

What may be done to restore governmental adherence to the Constitution? The starting point is to recall Madison’s observation that   citizens bear a principal responsibility in holding government accountable. Americans revere the Constitution, but require a deeper fund of knowledge to adequately defend it in the face of persistent challenges. Let’s initiate a remedy—together. For the next year, this column, “We the People,” will probe pressing constitutional issues with an eye to illuminating the meaning of the Constitution and empowering the sovereign people in fulfilling their duties as Madisonian Monitors.

Adler, Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send your questions about the Constitution to this newspaper and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities ND.