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the eighteenth century, especially one that didn’t even mention corporations, seems antiquated at best and positively outdated at worst.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.