Our Broken Constitution

Late last year Jeffrey Toobin wrote an important essay on what he calls “Our Broken Constitution” (New Yorker 12/9/13). Most everyone believes our government isn’t working now. Toobin asks is that the result of the Constitution? He reviews the history of the Constitutional Convention in 1787, the views of the founders, and some recent critiques of the Constitution

But nowhere does he propose a formal solution. He laments the difficulty of the amendment process and discusses some ideas about why we have such an obstructive Congress and a semi-paralytic Senate.

Anyone who reads the daily newspaper knows how dysfunctional Congress has become. We have read about it for years, a popular President from one party and a majority in Congress from the other party and so a Congress that does little else but argue and gets scarcely anything done, year after year.

We live in a time of rapid change that requires a more responsive legislature. The Constitution is clearly out of step with 21st Century. More recently Toobin continued this theme with a post about the unanimous Supreme Court ruling (the Noel Canning case) against the method by which President Obama made recess appointments.

The Constitution gives the President power to make such appointments because in the early days of the Republic travel was slow and the Congress was often in recess. That is clearly no longer necessary, yet the provision remains.

Perhaps part of the problem stems from the bicameral legislature mandated by the Constitution. This is unlike most countries in Western Europe that have a unicameral legislature, with a much greater turnover of members than we have in this country. This makes for a more responsive government, one that can adapt more quickly to change, and is less likely to get bogged down by an obstructive minority, especially one that is persistently so.

Would we have a more effective government with a unicameral legislature? We might at least avoid the inevitable conflict between a President of one party and a Congress from another. We would have a more experimental government, trying one approach and if it didn’t work, trying another.

I suppose we’ll never have an answer to this question. It is almost impossible to amend the Constitution. The country is too large and complicated now, the commitment to the Constitution is too firm, and the citizens of this country have little disposition to have a more experimental government.

Toobin concludes: The Noel Canning case is a reminder that nine Justices can agree on an interpretation of the Constitution that will, objectively, make the government function less well, less justly, and less democratically that it does now. This does little honor to the Constitution itself or the country that continues to venerate it.

We are supposed to have a government of laws, not men—a myth if there ever was one. Consider how current Constitutional law and the course of this country would be, if the Supreme Court in December of 2000 had decided not to end the recount of the Florida Presidential vote. It thereby handed presidential power to George W. Bush who became president with half- million fewer popular votes than Al Gore.

Chief Justice John Roberts and Justice Samuel Alioto would not be members of the Court today. As David Cole pointed out a recent issue of the New York Review of Books, affirmative action would be on firm constitutional grounds, the Second Amendment would not protect the right of private individuals to own guns, the rights of women to terminate a pregnancy would be protected and so too would regulations on corporate political campaign contributions.

Those are but a few of the differences that would exist today, if Al Gore had served as President. How dramatically different the recent history of this country would be if Roberts and Alioto had not been appointed to the Court.