A recent poll of adult Americans revealed a stunning lack of knowledge about the basic structure of the United States government under the Constitution. Nearly a third of respondents could not name one of the three single branches.
Such widespread ignorance is no small matter.
Let me put it in plain terms: People in power want more power. Power without limitations is dangerous. So there must be limits on power and they must be enforced. Think of a 3-year-old. If a parent tells a 3-year-old that he can’t eat in the living room except when the football game is on, the no-eating-in-the-living-room rule is no longer a rule — the living room is going to be a sticky mess.
{mosads}The same applies with our nation’s rules as outlined in the Constitution. Those in power at any particular time are put there as fiduciaries. The people are the trustees. The trust is self-government. We entrust Donald Trump or Barack Obama or Nancy Pelosi or Mitch McConnell with our own power to govern ourselves — we pass the baton to them to make decisions on our behalf. This works to our benefit only if we can take the baton back or if we pass it on with specific rules on how to twirl it, toss it and catch it.
Put another way, the system is set up so the three branches of government can boss each other around. The president can veto a law passed by the legislature or simply refuse to enforce it. Congress can pass laws that override laws made by executive branch agencies — or even decisions by courts. Congress can also vote to impeach the president or federal judges. Judges can declare a statute or a presidential decision unconstitutional. And so on.
Bottom line? There is no king anymore, folks. In England, the monarch’s power derives from God. In America, no one has a divine right to govern. The Constitution lays out the structure for how the people will govern themselves. To the extent that there is a boss, it is the Constitution, which forces all individuals in power to answer ultimately to the people.
The constitutional system is only as good as the boss who enforces it. In America, “we the people” are the boss. But today this system of self-governance is under immense strain. Candidate Trump threatened to challenge the election results if Hillary Clinton won the 2016 presidential race. As president, he has questioned the integrity and validity of the federal courts, tried to interfere with investigations into Russian intervention in the election, and pushed the limits of the Emoluments Clause, which forbids the president to receive gifts from foreign governments.
What are we the people going to do about this? To begin with, we need to understand a few things:
First, having a cop on the block matters. A law is meaningful only if it is enforceable. If elected leaders are allowed to violate the Constitution with no consequences, the Constitution will wither and die. We the people must be that cop.
Second, there is a big difference between policy and politics. Each branch of government makes decisions based on policy rationales — empirical evidence plus normative goals and values. Politics is a different animal altogether. To politicize an issue is to associate it with an ideological (and often emotional) bias that is fiercely guarded by clusters of people. When an issue is politicized, ideological bias drives policy, regardless of the facts. This is very, very troubling.
Take climate change. The scientific consensus is that the Earth is warming, and that there is a 95 percent or higher probability that the warming is caused primarily by humans. Responsible lawmakers on both sides of the aisle may debate whether trying to halt this trend is, as a policy matter, worth the impacts of environmental regulation on industry, which may be passed along to consumers in the form of higher prices. Different policy responses can be reached without ignoring or denying established, empirical facts. Political ideologues, by contrast, ignore facts and science in their single-minded quest to win.
Third, once a new tool appears in the government’s “toolbox,” it can be picked up for use at any time. When a president gets something constitutionally wrong or pushes existing boundaries while technically staying within the law, his actions set a precedent. Consider waterboarding — the controversial tactic used during the George W. Bush presidency. President Obama banned it. President Trump has contemplated bringing it back. The tool is in the box.
Fourth, “strict constructionism” is a myth. The Constitution is relatively short. And it is old. There is no way to apply it in modern times without interpreting it in some way. Therefore, people who purport to interpret it based on the document’s “plain language” perform an act of interpretation just as so-called activist judges do. The difference is that, by claiming to apply a “plain meaning,” certain judges may be able to avoid revealing why they are in fact choosing one reading over another. This theoretical debate matters a great deal when it comes to lifelong appointments to the Supreme Court.
Fifth, the Constitution applies only to the government. When the government hands off power to private military contractors or to private prisons, the Constitution does not apply. Facebook faces no First Amendment claims for kicking off offensive users, for example. As the lines between government and corporate America blur, the Constitution’s relevance fades. We must be mindful about privatizing government.
Sixth, American values are not laid out in the Constitution. Many of our daily national policy debates assume there is common ground — somewhere — about adherence to “American values.” These values might include honor, transparency, hard work, innovation, opportunity, freedom, justice and tradition. But these values are, for the most part, not written into law — and adherence to values is not enforceable in court. This legal tidbit comes as a surprise to many people who assume the Constitution is always there to protect them.
Voters need to know what the Constitution can do and cannot do. Our collective freedoms and rights require accountable leadership, regardless of which party is in power. Otherwise, government as we know it may not survive into the next generation.
Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater investigation and the author of the forthcoming book “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”