Bob Meade - How frail is our Constitution?

  • Published in Columns

Our Constitution was written by men who had lived under tyranny. They fought against unfair taxation without representation. They yearned for independence and the freedoms that would stem from it. They wanted a government that would do the bidding of the people, and a government structure that would inhibit power. They believed as Lord Acton had said, that . . . "power corrupts, and absolute power corrupts absolutely".

The combination of their courage and their brilliance forged a document that spread power through three co-equal branches of government, as a way to avoid tyranny from a singular force. Changes would be slowed by the process, with split legislative branches having to reach compromise on the laws they would present to the Executive branch for signature and approval. And, if the people affected by the changes didn't agree, they could petition the third branch, the Judiciary for a redress of their grievances, and that branch would be apolitical and decide based on the law's constitutionality. That system worked well and contributed largely to the overwhelming success of our country . . . becoming the richest, the most powerful, the most generous, and the most free that the world has ever known.

Perhaps the most often overlooked feature however, is that the "separation of powers" worked because each branch respected the role of and need for the other. Our government was never intended to give one branch, or one individual, or one political group all the power. To do so would confirm, sadly, Lord Acton's wisdom. To do so would also put us on a course of diminishing freedoms and, as they diminished, they would be replaced with tyranny.

But now, we are beginning to see the frailties of our constitution. We see that if we begin to remove the respect by one branch towards another, we not only have differences between the three governmental structures for all the world to see, we evolve a distrust among the people, the citizens, who begin to "choose sides" based on their personal interest or gain, and not necessarily for the good of the country.

Some examples of constitutional frailty: The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This important Amendment was intended to keep the power close to the people the government was to serve. Over time, those "States Rights" have been whittled away as the federal government imposes itself into areas not granted to it by the Constitution. One example is in education where, since 1977, the federal government has built an ever growing bureaucracy that has been imposing itself into what is constitutionally, within the purview of the States. As membership in teachers' unions has grown, so have the ranks of teachers. As a youngster, everyone in my family entered first grade at age five. At graduation from high school, the class was made up of 16 and 17 year olds, with a few who may have been "held back" being a year older. Gradually, as unions pushed to increase their ranks, the "need" for a kindergarten became the thirteenth grade and increased teachers' positions by over 8 percent. During that time, our reading-math-science scores have declined, not improved. Now the federal government is pushing for what they call the "common core" curriculum, and is also making a hard drive to start children in school at the age of four, throughout the country. It seems like there is an executive branch desire to reward failure with more union membership and, perhaps, another year of federalized student indoctrination. If the states don't fight for their rights guaranteed by the Tenth Amendment, will we see a continuing decline in our academic results? Probably!

Another example of our constitutional frailty can be seen in the executive branch's cabinet structure. The Justice Department reports to the executive branch, the president, and is responsible to see that the laws of the land are enforced. In other words, what has been enacted by the Congress, signed into law by a president, and has not been challenged and found to be in violation of the Constitution, is to be enforced by the Justice Department. However, we have seen numerous instances where this has not been done. We have also seen where the current department head has been less than forthcoming in answers to congressional oversight committees, and has been chastised by the courts for not being truthful when seeking approvals to wiretap a member of the press corps, and his family and business associates. Who prosecutes the prosecutor?

And yet another in a long list of potential examples is the executive branch signing a law that included specific dates of action, and then arbitrarily waving conditions of the law for selected groups, and changing specified implementation dates without ever having the law modified. Should not the Justice Department take some action for the laws being violated? Shouldn't the House and the Senate be granted "standing" so that they could bring those actions to the court when the Justice Department fails to do so?

Our Supreme Judicial Court is supposed to rule on a law's constitutionality. If that were so, would we have a clear left-right partisan divide, with issues of great importance being decided by a "swing vote" justice? Would we permit a Justice to openly state that he looks to see how jurists have decided similar cases in other, non-Constitutional countries? Would we put on the court a Justice with no previous experience as a jurist?

There are many examples of the frailty of our Constitution, of how it can be twisted and abused. But that frailty can be overcome if people, especially our politicians, put country before party. Otherwise, tyranny awaits.

(Bob Meade is a Laconia resident.)