We are at a time when the Constitution – or, as too many Americans think of it, that somewhat interesting list of suggestions posted on a 1780s website – is not so much under attack as forgotten, or ignored as an interesting artifact. This groundbreaking document—which specifically rejected both monarchy and party government, that so adeptly balanced empowerment and constraint, that created citizens not subjects—is dying of wounds and neglect.
American constitutional government is a hybrid: a republic in its governing structure, a democracy in the ways we select those who will govern. That system of government is in danger as both a republic and a democracy. The Constitution is about values: justice, liberty. It’s about process: the rule of law, habeas corpus. About our great protected rights: speech, worship, privacy.
This is an “et tu” moment. Our liberties are threatened by increasingly intrusive state surveillance. Justice is undermined by overzealous prosecutors, limited access to counsel, and the killing of unarmed men. When constitutional constraints stand in the way of a desired political outcome, process is ignored by left and right alike.
We have created and remain blindly loyal to an obsolete, anachronistic, 18th-century partisan political system that divides us against each other and has rendered the peoples’ assembly incapable of governing. It has undermined the separation of powers and fostered a semi-imperial presidency that too often rules by fiat while Congress sits idle and reporters write that the White House is deciding whether to delegate writing a federal budget to its subordinates on Capitol Hill. Those who have long hoped for a strong presidency might want to rethink their wish.
The Founders gave us a great blessing but they also gave us a great curse. The constitutional system they left us can survive only if it maintains the trust of its citizens and only if those citizens are capable of wisely using the power the Constitution places in their hands. The success of democracy therefore rests on performance of the government, on the wisdom of citizens, and on a public trust that the system works—for all the people.
It does not. Our constitutional system rests on a foundation of institutions: our education system, the media, the economic system, the justice system, a citizens’ legislature. Every one of those institutions is failing in its responsibility as protector of our constitutional democracy.
The United States Congress – the peoples’ branch, the constitutional repository of the war power, the spending power, the taxing power, the regulatory power – cedes more and more authority to the executive branch, and in the process surrenders the peoples’ authority. The Congress is meant to ensure that the final word over government rests with the citizen and to serve as a check on executive power. But it has abandoned its responsibilities, and in doing so has weakened still further any trust by the American public that its government works.
George Washington spoke passionately about the importance of educating young Americans in the science of government. “In a republic,” he said, “what species of knowledge can be equally important?” Yet today the study of the humanities is grossly underfunded. Many of our schools have changed their focus from the liberal arts – civics, critical thinking, philosophy, literature, history – to education for employment, high-class votech schools.
Corporate America has been seduced by claims that its only responsibility is to maximize profits, which it measures in short-term increments and achieves by outsourcing, layoffs, and a frustrating absence of customer access, accompanied by a tremendous gap between those who have much and those who have not enough. The problem is not inequality – the poor don’t envy the rich. The problem is inadequacy: too many who can’t afford a doctor visit or a car repair or to give their children money for a lunch at school.
What has this to do with the Constitution? Why concern ourselves with corporate behavior, why be bothered when the president of CBS boasts that Donald Trump, whether or not he was good for America, was good for CBS? How does the shooting of unarmed men relate to our constitutional crisis?
In November of last year, a New York Times headline cautioned: “How Stable are Democracies? Warning Signs Flash Red.” The story was based on a study by professors at Harvard and the University of Melbourne, later published in the Journal of Democracy, that found that one in four millennials in the United States thinks free elections are unimportant, and only one-third saw civil liberties as essential. A Freedom House study found that nearly one-fourth of millennials think democracy is a bad political system. None of these are majorities; sometimes people alter their views as they grow older. But the numbers are trending in a disturbing direction.
I wish I could be more celebratory. But the challenges are real and they are upon us.
My favorite poet, Edna St. Vincent Millay, was commissioned to write a sonnet for the dedication of the statue in the Capitol honoring the women who fought for equal rights. She ended with these words: “Forget the epitaph: take up the flag.” Our system of constitutional democratic government is at risk. It is not enough to look back at what was, nor to wring our hands at what is. It is our job to take up the flag, for all of us to become constitutional champions. The ideal of liberty, of justice, of selfgovernment itself, is on the line.