Guest opinion: Our constitutional emergency

During the June 1788 convention at which Virginia ratified the U.S. Constitution, Patrick Henry, a critic of the proposed government, accused James Madison, its foremost defender, of failing to protect against corrupt or lawless politicians. "Is there no virtue among us?" Madison replied. "If there be not, we are in a wretched situation. No theoretical checks — no form of government can render us secure."

That exchange is worth recalling as the House of Representatives failed to muster the two-thirds majority required of both legislative chambers to override the presidential veto of a congressional resolution to nullify the national emergency to build a border wall. It seems likely that the Senate, for its part, will not even do its constitutional duty and try. Republicans, especially Republican senators, are being justifiably excoriated for failing to defend congressional authority.

But blaming them alone misdiagnoses the constitutional problem. Congress' impotence indicates an appalling failure of constitutional awareness and education in the United States. The Republican base — like the Democratic base during President Barack Obama's tenure — is demanding, and getting, a constitution of expediency rather than of law.

As many observers have noted, the Republican senators who criticized the emergency declaration and then voted to uphold it — Thom Tillis of North Carolina, Ben Sasse of Nebraska and Lindsey Graham of South Carolina foremost among them — all face reelection in 2020. Trump is popular in their states, and their constituents are evidently more concerned with building a border wall than with the constitutional niceties according to which it is funded. These senators' failure to "refine and enlarge the public views," in Madison's phrase, is a dereliction of their duty under Article I of the Constitution. But the root problem is the constitutional views that elected officials are supposed to refine.

One Republican senator who voted against the emergency declaration, Roy Blunt of Missouri, was disinvited from a political event in his state by a local party official who demanded of him, "Why could you not support my president in the emergency declaration?" So long as the public does not care whether Congress protects its institutional turf — or, worse, is hostile to it doing so — the constitutional architecture cannot stand.

Madison understood this. One of the most consistent themes of his writings is that the public always governs eventually in the United States. "In republican Government the majority however composed, ultimately give the law," he wrote before the constitutional convention. Alexander Hamilton, too, explained that liberty in the United States "must altogether depend on public opinion, and on the general spirit of the people and of the government."

The constitutional imperative is to slow down policymaking so that passion can dissipate and reason can take hold. That requires civic virtues that constitutional education must teach. They involve not merely knowledge but ultimately temperament. The foremost is patience: Constitutional mechanisms work slowly by design. Another essential virtue is public-spiritedness: In a sprawling republic, those with strong views must recognize that they share the political community with fellow citizens whose competing views are equally intense. Both patience and public spirit entail caring not just what happens, but also how it happens.

If, by contrast, civic education focuses solely on outcomes at the expense of process, it will produce a politically entitled people immune to these virtues or to any civic quality other than demanding what you want when you want it. Yet this is substantially how civic education — which occurs in schools but also in the public square, when the news media reports on issues and when public figures discuss them — treats the constitutional order.

In schools, civic education tends to accord outsize importance to the Bill of Rights at the expense of the more complex topics of separation of powers, federalism and other pillars of the constitutional edifice. Hamilton had opposed a Bill of Rights in part because he thought these mechanisms safeguarded rights better than protections inscribed on paper could. Journalists and politicians equally obsess over winners and losers. The public hears whose ox is being gored, but too rarely the importance of the constitutional process by which the goring occurs.

A Madisonian people, by contrast, will care about constitutional integrity in addition to political outcomes. This is for constitutional reasons but also for selfish ones: The power whose use one celebrates today will be wielded by a leader with whom one disagrees tomorrow, a lesson Democrats who endorsed Obama's unilateral executive orders are now learning. Such citizens will also understand that they occupy the country along with more than 325 million fellow citizens whose views must be accommodated.

Crucially, they will not tolerate members of Congress who surrender legislative authority, even for results to some voters' momentary liking, because they will prioritize enduring constitutionalism over transient policies. They will realize, too, that maintaining legislative authority, which is more immediately responsive to local concerns, serves their own interests as well.

Finally, some group among a Madisonian people will have the foresight to step off the cynical and anti-constitutional carousel according to which President George W. Bush did it so Obama could do it so Trump might as well, too.

None of this excuses members of Congress from their duties, which sometimes include withstanding public opinion. Even the Democratic justification for an override vote sure to fail is, as the House speaker, Nancy Pelosi, put it, to create a record so the issue can be resolved by the courts.

To her credit, Pelosi did say that "we are Article I, the first branch of government." But she was less reticent about executive power when Obama acted unilaterally on immigration. In both cases, the House should have defended its constitutional turf. It is no solution — on the contrary, it presents its own constitutional problems — for one party to ask the courts to provide the institutional protection the whole House declined to provide itself.

As for the Senate, one purpose of its members' six-year terms is to enable what Madison called "great firmness" in resisting public whims and defending constitutional principles. So much for that. Every legislator is accountable for how he or she votes on the emergency declaration, but Madison expected those immediately facing re-election to capitulate more easily to public opinion. There are worse political sins. Harsher criticism should be reserved for senators who caved without facing immediate electoral consequences.

But their constituents who demanded this constitutional surrender — especially those who profess fidelity to the Constitution as the bedrock of their politics — deserve the sternest rebuke. It is an axiom of republican politics that everyone incurs criticism sooner or later, except the people. Yet if the people care solely about expediency at the expense of law, we are in a "wretched situation" from which the Constitution will not rescue us.

from Deseret News https://ift.tt/2WEo2Cz