Tuesday, September 5, 2017

Time for a New Bill of Rights

The daily diet of projectile tweets, undisciplined quotes, disturbing revelations, morally bankrupt pronouncements, and erratic behavior coming out of the Trump White House makes it hard to focus on broader issues and very real underlying problems. Steve pauses to reflect on one such issue: our weakened Constitution that is now in need of substantial revision.

Though some may not realize it, the oath of office taken at the inauguration of a new president is not a promise to “preserve, protect, and defend the United States.”

The specific vow, stated with hand on Bible and ending with a plea of help to the Almighty, is to “preserve, protect, and defend the Constitution of the United States.” 

Hardly a nuance. In a world where CEOs sign employment agreements that have riders and clauses running dozens of pages, most postings for internships on LinkedIn have a more robust and concrete job description than we give to our President.  Sure, there’s a bit of detail in Article 2 of the Constitution, where the framers briefly note the pay grade, the role as Commander in Chief, and the responsibility to appoint people to important government jobs.

But in the actual oath of office, the framers list a grand total of two responsibilities. One is a bit of a tautology: to “faithfully execute the office of President,” which sort of translates to “I promise to do the job that I was hired to do.” And then there is that little business about preserving, protecting and defending the Constitution… the only item in the oath of office that resembles a job description.

Here’s an irony: every day on MSNBC, we hear breathy broadcasters speculating as to whether Robert Mueller has enough on Trump so that maybe – just maybe – the Congress will squeak through to an impeachment on a largely circumstantial case of obstruction of justice.  Hey, everybody, listen up! Here’s a far stronger argument for impeachment! Why don’t we charge him with failing to preserve, protect, and defend the Constitution?

The case to be made is not one that is contingent on accepting James Comey’s understanding of the word “hope.”  We start with Trump’s relentless attack on the legitimacy of the judicial branch, through which he undermines separation of powers. There is his constant effort to de-legitimize a free and independent press, which derives its power from the “freedom of speech” clause in the First Amendment.  There is his religious discrimination, as evidenced in his travel ban, and also prohibited by the First Amendment. Sure, go ahead and throw in the obstruction of justice charge, in which the President is using the power of his office to attempt to shut down an independent criminal investigation of his own election campaign. With all that, and we don’t even need to prove the treasonous act of colluding with a hostile foreign government to influence the outcome of our election. 

The truth is that we have a constitutional crisis in full swing in America today, but it is not the one people talk about. The one commonly anticipated is a face-off between two separate but equal branches of government… which would occur if, for example, the Supreme Court ordered Trump to turn over subpoenaed financial documents and Trump refused.

No, the constitutional crisis we are talking about today is a broader, ongoing, and relentless assault on the Constitution and its intent that is weakening its ability to bind the country together and function smoothly under the rule of law.

This constitutional crisis started before Donald Trump ever presided over a television show. The battle that has been raging is one in which partisans – and let’s be blunt, by that we largely mean Republicans – have been contorting, undermining, and thwarting the will and intent of the Founding Fathers in order to achieve political ends.

The Founding Fathers drafted the Constitution knowing full well that they could not predict the future, could not anticipate every appropriate responsibility and limitation to government, and that they were not writing a comprehensive and fully detailed operating manual for a functioning government. Their goal was to create the architectural plan, with the expectation that legislators would fill in the detail, and that the ability to amend the Constitution would create a mechanism to accommodate the inevitable revisions that would be required.

As such – and as we have learned the hard way – there is a great deal that was never spelled out to the finest degree, and this has left the door open for manipulation and a gross corruption of the founders’ intent. 

Arguably the most egregious example of this is that the manner in which Mitch McConnell subverted the Constitution and the will of the people over the last Supreme Court vacancy.  The Constitution spells out that the President – and only the President -- has the power to appoint a candidate to fill a vacancy on the Supreme Court, which must then be approved by the Senate. But Founding Father and “Father of the Constitution” James Madison did not feel a need to add words to the effect of “and this better happen within three months of the vacancy, you sleezebags.” Nor, for that matter, did he overtly add the words “except in the last year of a Presidency,” which McConnell spun out of thin air as his rationale for blocking the will of the people.  So Mitch McConnell trampled on the intent of the founding fathers by refusing to even consider the nominee submitted by Barack Obama.  Mitch McConnell tore another big hole in the Constitution.

McConnell gamed the system, and plenty of Republicans thought he was brilliant to do it. Except when “the system” you are gaming is the intent of the United States Constitution, then you are simply manipulating the grey areas to serve a partisan or personal agenda, and you are subverting the will of the people. Mitch McConnell would be interested to know that the entire reason the United States of America was created was because the previous government had refused to represent the will of the American people.

McConnell alone represents an entire front in the war on the Constitution. It was McConnell who famously declared that his sole and overriding purpose in Congress was to attempt to make Barack Obama a “one term President,” as opposed to say, serving the people or working to improve that state of the republic. McConnell then attempted every parliamentary trick in the book in his efforts to block Obama’s agenda and stymie any semblance of forward progress. It is indeed ironic that when the Republicans took control of the executive branch, the House, and the Senate in 2016, McConnell still proved that his true skill set is to not get anything done. You have to admit, McConnell’s ability to stop any form of action or progress has a certain bipartisan flair.

In fact, it’s been quite distressing to realize how much of our governmental processes are not governed by real legal language, but rather by customs, honored traditions, and the good intentions of well-meaning patriots who viewed public office as a sacred trust.

The pardon of Joe Arpaio is the latest example of how years of policy, custom, tradition, and practice can be rendered worthless with the casual signature of an uneducated and unprincipled operator. Yes, there is no question that Donald Trump has the Constitutional authority to pardon anyone he wants at any time he wants.  But in the course of the 229 years since the pardoning power was articulated, there has been a vast infrastructure of policy and practices that have been brought to bear on judging the appropriateness of Presidential pardons.  Donald Trump ignored 229 years of policy and practice to throw red meat to his base. He grossly violated the spirit and intent of the Founding Fathers. There’s no literal language in the Constitution spelling out the reasonable criteria for considering and granting a pardon, so Trump just took out a club and crushed this important concept in a way that worked for his political needs.

Make no mistake: the Constitution has been stretched, strained and contorted for some time now. The Constitution determined that there should be two Senators per state, but seats in the House of Representatives should be determined based on population. The framers of the Constitution never felt a need to write down that states should not artificially distort the geographic shape and composition of districts in order to screw the minority party. So now we have long had the practice of gerrymandering, which was raised to a big data art form by the Republicans prior to the 2010 census. Their ferocious lock on the House is attributed to large measure to the extreme gerrymandering executed in Republican State Houses with 2010 census data. 

At the time the Constitution was written, the idea of an Electoral College made sense, as the Founding Fathers felt that the President should not be selected in a direct vote of the populace, but rather by wise and learned representatives of the less educated and ill-informed masses. Today, the Electoral College is a painful anachronism, a vestigial artifact of a vastly different time. Instead of improving the selection of the president, the Electoral College has twice in the span of sixteen years served to subvert the will of the people.

Perhaps the most elegant and important construct in the Constitution is the separation of powers: the federal government is comprised of three separate but equal branches that each provide “checks and balances” on the powers of the others. There was perhaps no greater “check and balance” that the idea that only Congress was empowered to declare war. But in a world in which the thermonuclear extermination of the United States could be launched and completed in minutes, the power to execute the most deadly form of war in human history was ceded to one person, fully empowered to act alone and on his own guidance. We now have a person with a tenuous grip on reality threatening pre-emptive nuclear annihilation of North Korea, and if he wants to do it, nobody can stop him. Certainly not what Madison and Jefferson had in mind.

Yes, the Constitution is off warranty and we blew past its 200 year maintenance and servicing without checking under the hood.  Madison probably would have been stunned that there have only been 27 amendments in 240 years, and flabbergasted that only two have been ratified in the last fifty years.

A strong argument can be made that the document itself actually no longer does a good job of reflecting the will and the inalienable rights of the citizens – not on the small stuff, but on the most crucial matters of government.

Twice in the past seventeen years we have elected a President who did not win the votes of a majority of citizens.

We have seen the will of the people to appoint a Supreme Court Justice eviscerated by inadequate governing language in the Constitution, and the very philosophical balance of the Court thereby shifted away from what the majority of the people intended at the time of the vacancy.

We have seen the House of Representatives turned into a dysfunctional and non-productive forum for rigid ideologues to posture and preen while getting nothing done.

We are living in a nightmare in which a single, terribly flawed and arguably deranged human being has the right and power to launch weaponry that would destroy civilization on earth, and we can do nothing about it.

It is time to acknowledge that Donald Trump may actually be as much a symptom of the underlying problem as he is the problem himself. One reason Donald Trump was elected was because millions of people were utterly frustrated that our government does not seem responsive to the will of the people. 

It is time to convene a bipartisan body to examine the weaknesses in our Constitution that time and unscrupulous individual players have revealed.

It is time to look into a new set of amendments, modeled after the Bill of Rights, that implement precision in cases where imprecision has led to manipulation. Perhaps, for example, an amendment should be written to say that the right to fill a vacancy on the Supreme Court falls to whoever is President of the United States at the time of the vacancy, and that person retains the sole right to nominate candidates even after he or she leaves office.  McConnell could not have pulled his stunt if such a constitutional amendment was in the books.

It is time to consider much more precise language that limits the authorization to launch nuclear war to a small group – but more than one person. Perhaps we require a majority of the Speaker of the House, the Chief Justice of the Supreme Court, and the President of the United States in order to press nuclear buttons.

It is time to write an amendment that creates a simple principle based on geographic proximity -- one that cannot be manipulated -- to determine seats in the House. We must eradicate the gerrymandering that is at the root of gridlock.

Perhaps there is an amendment which specifically limits the authority of the President to ignore Congress and impose policy through Executive Orders.

And, while we are at it, perhaps we should institutionalize that simple tradition of requiring candidates for president to submit their taxes for public scrutiny.

For many years, the system worked because enough learned patriots served in government positions to deduce and enforce the will and intent of the Founding Fathers in situations in which no literal language had been written.

Now, it is difficult to believe that our government is broadly populated by patriots rather than partisans, by students of history rather than ignorant populists, and by people motivated by the greater good rather than personal greed.

To believe that we will soon revert to Camelot, Lincoln, or Roosevelt is sadly naïve. The names may change, but we now have too many McConnells and Trumps, and not enough people with the guts to act on principle rather than self-preservation or party.

When we understand that the laws, language, and customs we use to define our government no longer effectively ensure the consensus of the governed, it is the duty of citizens to act. Perhaps two amendments in fifty years is not enough to keep pace with the astonishing rate of change in a global, digital, and internet-centric world.

It is our right, as citizens, to expect our government and our government officials to be reflecting the will of the people and the betterment of our society as a whole, not to be pursuing partisan or personal agendas. It is time for constitutional amendments that articulate that right.

Thomas Jefferson opened the Declaration of Independence with the phrase: “When, in the course of human events…”

While the phrase has come to evoke a timeless, profound, enduring majesty, the truth of it is that the literal meaning is far more mundane.  It essentially means, “from time to time,” “every now and then,” or perhaps “when the circumstances call for it.” A document that was not even perfect when first written 229 years ago is very, very far from perfect today. If anything, Jefferson was making the point that in a world of constant change, people who aspire to self-government under the rule of law better make sure that their government remains ever well designed to reflect the will of the citizenry.

It is time for a new Bill of Rights: a Bill of Rights that clarifies that the citizens of the United States will not abdicate their power of self-government to individuals who are bent on serving personal or partisan objectives.  It is time to stop assuming that people of good intention will do the right thing. It is time to clamp down on the ambiguity and fight the people who are perverting the founders’ intent.

It is time to call for rethinking how our government should work to serve its citizens, because our 229 year old Constitution is not doing that now.

And having Donald Trump as our President is demonstrating just how weak and fragile our Constitution is when there is no brilliant and learned patriot empowered to preserve, protect, and defend it.

We have all read the documented evidence that Donald Trump has lied literally hundreds of times since taking office.

But the most significant lie came in the very first words he spoke as he assumed the mantle of the Presidency: that he would “preserve, protect, and defend the Constitution.”  It is time to repair our constitution so that the likes of him can never threaten the very foundation of our country again. 

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