The Constitution isn’t working

The U.S. Constitution is the sacred text of American government and civic life. But it’s time to face facts: The document, written in 1787, isn’t working. The signs are all around us. Just 38 percent of Americans in a recent Gallup poll expressed either a “great deal” or “quite a lot” of confidence in the presidency, down from 48 percent in 2001. Congress, never high in the public’s estimation to begin with, fell from 26 percent to a mere 12 percent. The Supreme Court has also taken a hit, down from 50 percent to 36 percent during the same period.

One reason often cited for the failing Constitution are the people who inhabit its carefully crafted institutions. In Congress, serious legislators are scarce, as many members aim for viral recognition on social media. Freshman Rep. Madison Cawthorn (R-N.C.)  freely admitted, “I have built my staff around comms [communication], not legislation.” Cawthorn is hardly alone: Reps. Marjorie Taylor Greene (R-Ga.) Paul Gosar (R-Ariz.), Jim Jordan (R-Ohio) and Lauren Boebert (R-Colo.) represent a new breed of legislators who seek recognition and are largely uninterested in passing actual laws.

Disappointing presidents have become the norm. George W. Bush, Barack Obama and Donald Trump failed to bring the country together, with Trump leaving office amplifying spurious claims of election fraud that led to the insurrection on Jan. 6. Although it is early in the Biden presidency, voter disenchantment is already clear, and the unity he promised in his inaugural address seems as elusive as ever. In the 19th century, James Bryce famously remarked that great men do not become presidents. Indeed, great presidents such as George Washington, Abraham Lincoln and Franklin D. Roosevelt are the exception, not the rule. 

Today, many see the courts not as arbiters of justice but inhabited by what Justice Amy Coney Barrett unsuccessfully tried to refute as “a bunch of partisan hacks.” Sixty-one percent of American adults surveyed by Quinnipiac now believe the decisions of the Supreme Court are motivated by politics; just 32 percent think its judgments are based on dispassionate readings of the law. Justice Sonia Sotomayor describes today’s court as “fractured.” She’s right.

But the Constitution’s failures go much deeper. The framers designed the presidency to execute laws, not make them. But the vagaries of congressional legislation have given the president the power to make laws through executive orders. The result is a roller coaster from one president to the next. Donald Trump loved signing executive orders, putting his Sharpie on 220 of them. Thus far, Joe Biden has signed 76 orders, with progressive Democrats urging even more. Trump enjoyed reversing Barack Obama’s executive orders; Biden feels the same way about Trump’s. 

Meanwhile, Congress is failing to protect its constitutional prerogatives. Instead of reserving to itself the right to declare war, Congress has surrendered war-making to the president — something the framers assiduously sought to avoid.

When Trump egregiously ignored his oath to “preserve, protect, and defend” the Constitution on Jan. 6, the prescribed constitutional remedy of impeachment and conviction failed. Rather than asserting its constitutional rights, Congress has surrendered them to extreme partisanship. In the House, congressional Republicans are willingly forfeiting Congress’s subpoena powers in the Jan. 6 investigation but seek to reassert them if they are rewarded with congressional control in 2023. In the Senate, the filibuster is no longer the rare instrument designed to halt legislation and foster debate. Instead, the 60-vote threshold has become the default mechanism to stop all legislation without a word.

When George Washington supposedly was asked by Thomas Jefferson why the Senate was created, he responded, “Why did you just now pour your coffee into that saucer, before drinking?” Jefferson answered, “To cool it.” Washington responded, “Even so, we pour our legislation into the senatorial saucer to cool it.” The Senate was designed to cool legislation, not kill it. 

As partisanship grips the nation, more turn to the Supreme Court to revoke actions that either party finds offensive. During the past 20 years, the Supreme Court has waded into numerous political controversies. In 2000, a conservative majority in Bush v. Gore found that George W. Bush’s constitutional right to equal protection under the law overrode Florida’s Supreme Court ruling that all ballots be hand counted.

However, the Supreme Court declared that its decision only applied to George W. Bush while ordinary citizens in poorer areas, whose inferior voting machines inaccurately count their votes, would have no jurisdiction. Since then, judicial partisanship has escalated, with the conservative Court keeping the 2021 Texas abortion law in place. In her dissent, Justice Sotomayor concluded, “The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.” 

It won’t be enough merely to reform the filibuster, add more justices to the Supreme Court, change presidents or surrender presidential powers to Congress. A document written in 1787 is inadequate for the 21st century. The Electoral College is poised to create more misfires, with popular vote winners not becoming president, as has happened twice already this century. Territorial expansion has resulted in 16 percent of the U.S. population controlling half the seats in the U.S. Senate.

The Dakotas are but one example. When the two states were admitted to the Union in 1888, Republicans deliberately split the territory in two, thereby creating four new senators, not two. Meanwhile, the “strict constructionists” of the Supreme Court resort to determining the original intent of a document written 234 years ago rather than understanding that it was a beginning, not an ending point. 

Thomas Jefferson once remarked, “I hold it that a little rebellion every now and then is a good thing, and as necessary in the political world as storms are in the physical.” Let’s face facts: The Constitution isn’t working. It’s time for a little rebellion.

John Kenneth White is a professor of politics at the Catholic University of America. His latest book is “What Happened to the Republican Party?”