Antiquated Constitution?

About one hundred years after the Constitution was adopted in this country Henry Adams was convinced it was already obsolete. As the grandson and great-grandson of Presidents he might have been concerned that the document tied the hands of the executive. That would be understandable. It certainly is the case that when it was written, one of the major concerns of its authors was to limit the powers of the President. Perhaps it limited the executive too much. Adams thought it made government stagnant and he hoped that when Grant took office the situation would be remedied. It wasn’t, however, since Grant didn’t do much of anything except make some bad appointments and get mixed up with the Gold Scandal. Adams came to believe that Grant was a living argument against Darwin!

But there does seem to be some truth in Adams’ concerns. A document written in the eighteenth century, especially one that didn’t even mention corporations, seems antiquated at best and positively outdated at worst. Large Wealth has gained the upper hand and turned our Republic into a corporate oligarchy. Further, consider the powers granted to the U.S. Senate which is the body that was targeted by Adams for most criticism. It has immense power and its members seem to be around forever gaining more and more power. The Senate is able to abuse that power even more readily than the President — something the framers did not foresee.

Madison, for example, was convinced that no minority, within or without the Senate, could ever stall the workings of a democratic system because the majority would simply sweep them aside. In Federalist # 10, Madison expresses almost naive confidence in the ability of a majority to eliminate what he called “factions,” or those small groups within and without government that would misdirect the public good. He says “If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by a regular vote.” But then Madison was also convinced that those in Congress would be the best and brightest in the country at large, “whose wisdom may best discern the true interest of the country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary and partial considerations.”  Yeah, right.

Let’s consider some of the powers of the Senate listed in Article II Section 2 where, ironically, the document explains some of the powers of the President (note the repeated qualifications):

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.

It is precisely the powers to “advise and consent,” as Adams saw it, that pretty much tie the hands of the executive and can bring government to a halt. In fact, as we have seen in our day, the Senate can simply refuse to act on presidential appointments and they remain vacant for years. During Adams’ lifetime, Secretary of State John Hay was repeatedly frustrated by the Senate’s reluctance to ratify treaties Hay had painstakingly arranged. The two-thirds majority required for ratification was the killer. It seems that this power is the one Adams most strenuously objected to as it ties the government in knots. It was certainly one of the most hotly debated topics at the time of the writing and subsequent adoption of the Constitution: would the President be hindered from doing his job or would he be given enough power to do the job and then abuse that power? It was a difficult line to draw.

But given the snail’s pace with which this government goes about its business; its susceptibility to the influence of “factions” and PACs; the lack of term limits on members of Congress; the persistent misreading of the second amendment; and the unrestricted influence of large corporations on the election and functioning of officials within government, a strong case can be made that the Constitution can no longer do the job it was designed to do more than two hundred years ago. Rexford Tugwell, part of F.D.R.’s “brain-trust,” years ago proposed a revised Constitution that was widely discussed but went nowhere. Perhaps it is time to reconsider.

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7 thoughts on “Antiquated Constitution?

  1. Thanks, Hugh, for such a thoughtful post!

    It is a difficult line to draw, indeed. But — especially considering the current political climate — I guess I prefer that that line always be difficult to draw, and to cross.

    If hindering or slowing the pace of one president’s efforts to do good through his executive role means that it also slows or prevents another president’s asinine and dangerous agenda, I’m willing to make that tradeoff. Constructive programs and policies can be revisited, reworked, moved ahead through other means — a delay in them most likely won’t mean the end of the nation or democracy. On the other hand, if a destructive, incompetent or self-serving president got his way on dangerous, reckless proposals without there being some check on his power it could bring irreversible damage or destruction to the country. That’s unacceptable.

    And it is not just with the presidency. The ability for a minority party in Congress to obstruct legislation or appointments to the judiciary or cabinet posts, or of the courts to overturn executive orders, may be frustrating when it holds up legislation or appointments we like. (Mitch McConnell did that frequently, of course, with Obama appointments and initiatives, and it was beyond aggravating.) But, again, if that also means that the minority in Congress or the courts can stop or slow idiotic, inhumane orders by Trump or cruel legislative efforts by Republicans in Congress, it is a tradeoff we need.

  2. Hugh, the dilemma is we cannot trust the lobbyist serving Congress to come to the most elegant answer. The truth cannot set us free, when people do not care about the real truth. Yet, I do agree select changes are needed. Keith

    • I honesty don’t see this Congress — or any other Congress — having the courage to even suggest changes in what has become a Holy Relic: the Constitution. But the Founders never envisioned it as unalterable and thought it not only could but should be changed to mettle demands of changing times. But I just don’t see it happening. (This is in response to both Keith and Dana. Thanks for the good comments!)

  3. Excellent and thought-provoking post, Hugh! You know I have always been a defender of the Constitution, though not the textualist interpretations. I can see where perhaps it is time for an update … BUT … my concerns outweigh what benefits I think might be gained. First, I agree with Dana that … given the current resident of the Oval Office, we do NOT need to grant the executive any more power than it already has. But my next concern comes as: who would draft a new document? I cannot trust that we would find a group of men with the conscience and intelligence that the framers of the original document had, and I fear the framers of any revision would be the very types that are in Congress and the administration now … those who would draft the law to their own advantage, rather than that of We The People. Your thoughts?

    • I would be satisfied with a few amendments that address the unlimited power of the corporations, the PACs and term limits. And I do think Adams was right about the undue powers granted to the Senate: they can hold up nominations to the courts and other political appointments forever (as we have seen). That could be addressed. We could find a small group of constitutional lawyers who could put together those amendments, but the possibility of the Congress passing them is very slight. They are not likely to bite the hand that feeds them!

      • I definitely think the PACs, and big corporations should lose all power … I do mean ALL power! And I am 100% in agreement with term limits — Mitch McConnell is the best example of the need for term limits. Once upon a time, I didn’t agree with term limits, as I felt that people doing a good job should be kept, and the voters would oust those who were not. But … obviously THAT theory flew out the window some time ago! As to the power of the Senate … I admit to being conflicted there. It is true that escapades like the Senate refusing to even consider Merrick Garland last year are counter-productive to the workings of our government. But, I think … what if there were a madman in the Oval Office (just theoretical, you understand 😉 ) and he were making nominations and requesting obscene legislation … and what if the Senate did not have the ability to put the brakes on that madman? What then? It worries me, and as I said, I am conflicted on that one. Sigh. I am conflicted a lot these days, y’know?

      • I think the Senate should have the power to make the final determination about Federal appointments. But after a certain amount of time has passed there should be a way around it — perhaps involving the House of Representatives (not the executive). Hundreds of Federal appointments have been held up over the years and this creates a backlog that never seems to go away!

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