Asheville Daily Planet, September 2018
This November, we have a chance to save the reputation of the Founding Fathers. Their Constitution is looking old and worn these days.
We hear pundits talking about a “Constitutional crisis” when President Trump has done something forbidden. It’s like these people really believe the line they got in ninth-grade civics class about checks and balances. Relax. We’re not going to have a Constitutional crisis. Nothing’s checked in Washington, and nothing’s balanced.
The Founders did their best. They drew from the great philosophers of the Enlightenment and, incredibly, their plan for their new government has worked pretty well for 240 years.
Now it’s all coming unwound, and we see the Constitution in a new, critical light.
The Constitutional Convention was very low-profile. The superstar Founders – Jefferson, Hancock, both Adamses, Jay, Henry – didn’t attend. (Franklin did, and Washington was chairman.) Hamilton attended sporadically. The press gave scant coverage.
Delegates came and went over the summer of 1787. Some state delegations lacked quorums and so had no vote on issues.
For two months, the Convention debated the principles of an outline James Madison brought. Then a “Committee of Detail” took 10 days to write the first draft – from the Convention’s deliberations but also from many other sources and even ideas, that hadn’t been discussed, that they thought should be included. Ultimately, the Constitution we have was the handiwork of two obscure Founders: South Carolina’s John Rutledge and Pennsylvania’s James Wilson (both later Supreme Court justices).
The issue of keen interest to us today, checks and balances, was intended as a rifle standing beside a vigilant watchman. The gun doesn’t act on its own; it has to be deployed. Madison wrote in Federalist #51:
“The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others…Ambition must be made to counteract ambition.”
As we review the Founders’ work in today’s world, we see the big flaw of the Constitution’s checks and balances system is the power given to the Executive Branch.
The president is commander-in-chief with no real check on his use of the military. He makes appointments, grants pardons, carries out foreign relations – and the compelling one in recent years, the power to issue executive orders, which don’t require congressional approval.
These enormous powers have hung like tempting fruit to all presidents, but few have taken advantage. Andrew Jackson defied the Supreme Court in Indian removal to the West. Abraham Lincoln was a dictator during the Civil War. Congress told Andrew Johnson that he couldn’t remove his secretary of war, but he did anyway. Teddy Roosevelt did what he wanted in Panama. Franklin Roosevelt was an “imperial president.” Executive orders in excess were issued by Barack Obama when he was stonewalled by Senate Republicans, and now Trump issues them like souvenir pens.
Presidential powers are scary there on paper. In the hands of Donald Trump, they’re apocalyptic.
The Founders bungled presidential power – and then they compounded their mistake by making the Legislative Branch’s check on the Executive a virtual impossibility.
It’s relatively easy for the House of Representatives to impeach because their work isn’t final, but the required two-thirds vote for conviction and removal in the Senate is likely only if the president is a raving maniac or a traitor.
If voters elect a Democratic Congress in November, we can move toward what the Founding Fathers hoped for in checks and balances. Republicans have been timid watchmen, no check on Trump’s use of power. Democrats will find ways.
Impeach him? Probably not. Why not? Because the Founding Fathers made the next step, removal, practically impossible.