Saturday, September 6, 2014

The Myth of Constitutional infallibility

Jonathan Turley, law professor at George Washington University School of Law, has recently issued some startling opinions about President Obama's conduct of the presidency. When the President ordered air bombardment of Libya in 2011, Turley represented Congress in its lawsuit, Kucinich v. Obama, to stop the exercise of the President's war powers. In his analysis of the reasons behind the suit, Turley wrote
The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I.
By invoking the Framers--i.e., the political theorists who wrote the U.S. Constitution--Turley slipped down the rabbit whole of Constitutional Infallibility. Arguments about what James Madison believed or intended to produce in the Constitution are irrelevant to modern day problems because the Framers could not foresee the circumstances of modern life.

Time in the early years of the new Republic ran much more slowly than it does today. For example, the Battle of New Orleans was fought on January 8, 1815. Hostilities continued in Louisiana until January 18. But the Treaty of Ghent, which ended the War of 1812, had been signed on December 24, 1814. So the news that the war was over took 25 days to reach the battlefront.

Under such circumstances, Congress had plenty of time for such things as declaring war and debating strategies. Today, that time lapse has vanished. The President has to make decisions within a window of opportunity of hours, not days. The mechanizations of Congress and the Courts are too slow to cope decisions that require immediate actions.

The problem with falling down the rabbit hole of Constitutional infallibility is that you are likely to meet Justice Scalia coming back the other direction. In dissenting to NLRB v. Canning, Scalia wrote
The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court's role in controversies involving the separation of powers and the structure of government.
Scalia was referring to the power of the President to make recess appointments. The Republican members of the Senate determined to oppose every appointment proposed by the president, regardless of its individual merits. They refused to let Obama appoint sufficient members of the National Labor Relations Board to make a quorum, thereby effectively nullifying the NLRB's ability to act. Scalia's opinion meant that the Constitution is obsolete, because the Senate never actually has a recess and therefore the president has no power to make recess appointments as specified in the Constitution.

Scalia and Turley may not agree on many political points, but they do share the conviction that it is very important to interpret what the Constitution says on any issue, even those on which the Constitution is silent. I contend that this agreement is facial evidence that the Constitution is broken.

The Constitution is broken because the Framers lived 200 years ago and are separated from everyday reality by 200 years of history. They are therefore profoundly ignorant of the conditions of modern life. Although possessed of massive legal expertise, the Framers were not clairvoyant. Using their opinions to make decisions today makes as much sense as calling in a spiritual medium to reveal the thoughts of James Madison.

The primary harm caused by this mummery is that the average citizen has no idea what the laws of the nation are at any time. A written Constitution made sense 200 years ago, but trying to fit modern laws to its procrustean bed makes no sense today. True, a cottage industry has grown up around such efforts, and Justice Scalia and Lawyer Turley both benefit from Constitutional controversy. But the rest of us do not. It is time to reset the scales of justice in a sensible manner and quit relying on the scribblings of the past to guide our conduct today.

The myth of Constitutional infallibility is just as injurious as the myth of divine infallibility, which supposes a supreme being who knows all things. In both cases, individual interpreters can pretend divine inspiration and contravene the decisions of legislatures and democratic elections. The nation should be governed by laws, not legends.

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