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What's at stake in the current constitutional crisis caused by Barack Obama?

Thinking it Through

N ot just conservative Republicans but even liberal constitutional law professors are alarmed by President Obama’s avowed determination to stretch if not burst constitutional barriers to executive authority. Jonathan Turley, a Georgetown University scribe and a big Obama supporter, has sounded the alarm on, of all networks, FOX.  Such a right-left agreement points to the reality that our Constitution is under assault by a “transforming” President armed, as he says, with a pen and a telephone.

As encouraging as this evidence of growing public concern is, it does not go far and deep enough to match the full dimensions of the crisis. What we are witnessing is not only the unbridled conduct of our President, but a threat to all our constitutional processes which make a strong national government compatible with our rights as citizens and rational conduct of our affairs.

Generally, the Constitution is cherished as an historic and even sacred document, including its famed checks and balances on the abuse of political power. But both friends and enemies of our nation’s charter tend to see no further than the capacity of Congress to thwart the will of the President, or vice versa; or of the Supreme Court, in actual cases brought before it, to strike down laws or decisions in conflict with the Constitution.

Americans are understandably attached to the separation of governmental powers among three distinct branches. They often speak of how it prevents one branch from dominating the others; or worse, concentrating all powers in itself. But the very idea of separation first had to be conceived as a way to moderate the excesses of absolute monarchy.

Great Britain was the first European country to place significant checks on royal power through its Parliament of Commons and Lords. It also developed a common-law tradition via a court system officially under monarchical control but exercising de facto independence. English colonists, influenced by the mother country’s example, established elective bicameral legislatures and independent courts.

As radical as the American Revolution was in its principles, abandoning monarchy for republican government, it left the outward forms of their governments pretty much intact. But experience showed that the separation of powers set down in their new state constitutions was being undermined in most cases by the legislative branch, which was dominating the other branches.

The authors of the United States Constitution were in broad agreement on the need to avoid these difficulties in the new national government proposed in 1787. Knowing that the legislative branch, possessing the law-making and taxing and spending powers, needed to be checked, they went beyond paper protections to devices based in human nature.

The main advantages of the founders’ “inventions of prudence,” as James Madison called them, are set forth in his essay No. 51 of “The Federalist.” First, the legislature must not only be divided into two branches, but each must be sufficiently distinguished from the other in its mode of election and governmental powers to give their members strong motives to protect their departments. Next, the heretofore weak executive and judiciary must be strengthened by making them as independent of the legislature as much as possible.

Whereas the British Prime Minister is elected by Parliament, the American President is elected by the people through the Electoral College for four years, and most federal judges serve during “good behavior.” That is why neither the President nor the Supreme Court is overawed by Congress.

But what, beyond the various officeholders checking the other branches, is the reason for the separation of powers? The framers of the Constitution also saw the need for calm deliberation, stable government and energy in the executive.

The chief defects in the old Articles of Confederation were incompetence and weakness. As power was effectively in the hands of the states, little could be accomplished at the federal level. Their solution was to end the national government’s dependence on the states and to establish powerful, though checked, departments.

What is dismissively called “deadlock” in our system is in fact an institutional guarantee of thoughtful discussion and debate before resort to enacting laws and making citizens finance them. Since groups of men sharing power cannot effectively conduct foreign affairs or wage wars, those powers are assigned to the president. Since neither of those branches can be trusted to judge cases that arise under laws that are passed, judges schooled in the law are routinely appointed.

Thinking before acting, acting vigorously when necessary and ensuring compliance with the Constitution are good habits which our Constitution makes possible.  Therefore, a president who presumes to set aside provisions of laws, refuse to enforce them or even make laws on his own is more than a threat to the independence of the other branches. He is a threat to a delicately balanced government competent to its responsibilities and mindful of its limitations.


Richard Reeb taught political science, philosophy and journalism at Barstow College from 1970 to 2003. He is the author of "Taking Journalism Seriously: 'Objectivity' as a Partisan Cause" (University Press of America, 1999). He can be contacted at rhreeb@verizon.net


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