As we obsess on the trainwreck that is the current presidential election, I have tried ways to become at peace. Rhetorically, I ask myself questions: Will the whole ship of state sink with one disastrous personality of a president? Isn’t the president merely one person in a large system? Why don’t we pay attention to the other persons manning the government?
Recently I read Ron Chernow’s biography of Alexander Hamilton. I read it mainly because of the musical, but the book gave me some insights. As Justice Oliver Wendell Holmes commented, a page of history is worth a pound of logic.
Since attending law school, I have struggled with the meaning and shape of the federal constitution. Yet seems to me, from reading Chernow’s book and other historical texts, that our nation’s founders planned the federal government as a pyramid of power.
These founders, including Hamilton and James Madison, were well informed. They drafted the constitution with their eyes on history.
It has been said that they took our system of checks and balances from the French jurist Montesquieu. Montesquieu, in turn, saw this system as already working in the English government.
But Montesquieu’s observations were not quite accurate. It was true that a century earlier, following the Restoration, Charles II and Parliament had shared power equally. They were compelled by circumstance to cooperate with each other.
But after the accession of the Hanovers in the early 1700’s, the British Parliament became the sole shaper of public policy. The monarchs became figureheads.
It was Parliament that imposed the taxes exploiting the American colonies. For a considerable time, colonists, including young Hamilton, retained a loyalty to the King even while venting their anger against Parliament. It was only after George III called for the hanging of all rebels that angry colonists turned away from him.
As Parliament had been the most active part of the British government, our nation’s founders established the Congress as the primary branch of the new government. It would be Congress that would enact laws and levy taxes.
The founders agreed that the nation would have a chief executive. But the executive branch was viewed with suspicion. The chief executive, or president, could potentially assume power as a monarch or despot.
It would be best that the president be subordinate to the Congress. The president had to run the nation in such matters as commanding the military and collecting taxes, but laws would be passed only by the Congress. If the president hoped to influence public policy, he or should would have to do so through the Congress.
Finally, the judicial branch was to be the most the most limited. It would make decisions only on the specific cases that were presented to it. It could interpret existing laws in the cases presented. But those decisions were limited to evidentiary facts presented by counsel.
We would do well to again look at this pyramid. Admittedly, all of these branches have evolved. The presidency, through such strong personalities as Lincoln and Theodore Roosevelt, has assumed more power. The nation has largely looked to presidents for leadership.
The Supreme Court has also significantly developed. With the 1803 case of Marbury v. Madison, the Court, led by John Marshall, established the principle of judicial review. The judiciary has the power to review legislative or executive acts in the light of the federal constitution. It can accordingly strike down laws that do not comply with the constitution.
But a misperception exists to the effect that the judiciary has broad powers. Much has been made of the far-reaching decisions of the Warren Court.
Yet these decisions are limited to constitutional considerations. The Civil War fundamentally changed the nature of the federal government. With the south defeated, the federal government changed from a federation of states to a united government. The constitution was amended not merely to acknowledge the rights of all persons, but to provide some federal oversight on the potential denial of those rights by state or local governments.
Further political changes occurred in the two decades following the end of the Civil War. Reconstruction ended. The federal government backed away from enforcing the constitutional amendments enacted in the late 1860’s. The Supreme Court refused to oversee the acts of state governments, even allowing segregation to stand in the 1896 decision of Plessy v. Ferguson.
The Court was thus reneging on the judicial review policies established by the Marshall Court. It was allowing unconstitutional acts to stand.
In reaction to 80-plus years of judicial backsliding, the decisions of the Warren Court were far-reaching. Through Brown v. Board of Topeka, Kansas, the Court held school segregation to be unconstitutional. Miranda v. Arizona ruled that police must give warnings before they may extract confessions from incarcerated suspects. Gideon v. Wainwright established the right of the indigent to free counsel.
Yet these decisions were not broad exercises of judicial power. They were rather corrections of the prior abdication by the judiciary of its responsibilities. The courts again to stuck down government acts that violated the constitution.
Contrary to their detractors, the justices on the Warren Court understand their limitations. They were not authorized to create new laws. They were not to question the soundness or wisdom of statutes or executive policies. Often they were compelled to uphold foolish laws.
We would do well to also understand the limitations of the executive branch. This branch must carry out the day-to-day work of the federal government. It must collect taxes, protect the nation and investigate and prosecute federal crimes.
But its powers are nevertheless limited. President Obama’s attempts to circumvent Congress through the issuance of executive orders have been of minor effect.
To understand the relationship between Congress and the president, we must go again to history. In medieval England, the barons grew tired of the unilateral levying of taxes by the tyrannical King John. Through a combined effort, they forced John to sign the Magna Charta. The monarch could thereafter levy taxes only with approval of the nobles.
In the succeeding decades, kings had to call nobles from the far corners of the kingdom in order to gain such approval. This, of course, caused considerable problems.
Edward I solved these difficulties 1295 by calling the so-called Model Parliament. With the established Parliament, its members, consisting of members of the nobility and clergy, met at regular intervals to establish public policy.
The origins of Parliament, then, lay in issues of governmental coffers. As a descendent of the British Parliament, the American Congress assumed control of the new nation’s finances. Without Congressional sanction, acts of the president were without funding, and of little effect.
The making of executive orders also involves problems of process. Made only by one person, the president, an executive order lacks the supple shape of laws traditionally shaped by legislative compromise.
We should pay at least as much attention to the people we are to elect to Congress as we do to the person selected for the White House.. A good Congress can keep a dangerous president. Members of Congress, including Hillary Clinton and Barack Obama, voted in favor of George W. Bush’s plan to invade Iraq. Had they done their work properly, the invasion may not have incurred.
Likewise, the current Congress, led by such recalcitrant members as Ted Cruz, refuses to act, or to cooperate with the president. Certainly it is healthy to oppose a president on principal.
But the Congress has gone far beyond mere assertiveness. The federal government has stagnated, and issues such as gun control and immigration remain unresolved.
Regardless this presidential election’s outcome, we should turn more attention to the Congress. If we cannot quite get back to the power pyramid envisioned in 1787, we should at least start holding Congress accountable for its actions and inactions.