A worst-case-scenario president: Why we need constitutional literacy in America

We need greater constitutional literacy in America — and we need it now.

Imagine a four-lane bridge, beneath which is a raging river. Thousands of cars cross the bridge every day. On some days, officers in blue uniforms direct traffic, giving drivers of red cars a disproportionate number of tickets for traffic violations. On other days, officers in red uniforms direct traffic, and pick on drivers of blue cars. 

People on both sides of the red versus blue rivalry are incensed about the situation. They spend a lot of time lobbying lawmakers to punish the other side for its respective unfairness. Drivers of silver, white and black cars don’t really care who directs traffic. If asked, they can’t say much about the problem because they don’t follow it in the news. It doesn’t concern them.

Meanwhile, the centuries-old bridge is corroding. Its foundation is wearing down after years of heavy use and water damage. Politicians are so busy fighting over who directs traffic on the bridge that they ignore the need for bridge maintenance. One day, the bridge collapses. Everyone on the bridge — blue car drivers, red car drivers, and drivers of every other color vehicle — plunges to their deaths.

Now swap out the bridge for the U.S. Constitution. The red-uniformed officers are Republican members of Congress and Republican presidents. The blue-uniformed officers are Democratic members of Congress and Democratic presidents. Like the foundations of the bridge, the Constitution’s structure is what holds up our democracy regardless of who is in charge of the government at any given point in time. Like the bridge, if the structure of the Constitution fails, American democracy — and the individual freedoms it protects — could go down with it.

What, then, is the Constitution’s structure? Think of it as a three-headed monarch. The framers of the Constitution hated the structure of the British monarchy, whereby a single person held all of the power. Historically, he or she could — and did — use it arbitrarily against individual citizens whom the monarch had ideological problems with.

The framers broke the monarchy up into three parts: an executive (the president), the Congress and the federal courts. No one branch gets all of the power. It’s like a three-legged stool. All three are required to hold up the seat of democracy. If one is weakened to the point of failing, the stool cannot stand. 

Many Americans learn about the Constitution’s structure — otherwise known as the “separation of powers” or “checks and balances” — in school. But few people beyond political scientists and law professors think about what that structure really means — and what it could mean if that structure breaks down.

These days, the danger to democracy is not about blue uniforms or red uniforms. It’s about the powers of the Office the Presidency. And the relative powers of the institutions of the legislature and the courts. 

The way the separation of powers works is that each branch gets its papers graded by the other two branches — because the “boss of all bosses,” the Constitution, requires it. So, if the current holder of the office of the presidency grabs power from the legislature, or breaks laws established by Congress, or ignores a federal court order (all things that have occurred under the current presidency), the other two branches must check that power for the stool of democracy to stand. There must be consequences. Otherwise, the Constitution becomes nothing but a scrap of paper.

Think about a speed light camera on a stretch of road. Drivers familiar with the camera will slow down during that block, then speed up once they pass the camera. The consequence of a dreaded speeding ticket motivates compliance with the speed limit while the camera is watching. The lack of a consequence motivates disregard for the same law once the speed camera is out of range. 

With this in mind, think about the hypothetical worst-case-scenario president — whomever that may be. Imagine that person having unchecked power to declare wars, to send troops into battle, to declare national emergencies. Imagine a president who decides which laws are “real” ones and which are optional, arbitrarily sets tariffs and trade policy, says anything to the American public regardless of truth. Imagine someone who picks and chooses the political viability of members of Congress based on abject loyalty. If you are comfortable with that scenario, then at least one of us can sleep at night.

If you aren’t so sanguine, it’s time to pay serious attention to the structure of the bridge that is American democracy.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law. Her book, “How to Read the Constitution and—Why,” will be published in June. Follow her on Twitter @kim_wehle.

This is the first piece in a series by Wehle on constitutional literacy.