The Real Constitutional Crisis

As anyone who reads my blogs and columns–or who has ever been a student in one of my classes–can attest, I have respect bordering on reverence for the American Constitution. But it is becoming painfully clear that some of the governing mechanisms required by that founding document no longer serve us. The Constitution was crafted, after all, to address the concerns of a very different age.

The dysfunctions of the system have been accelerating for some time, culminating in today’s parody of responsible government.

A recent article in Commentary Magazine focused on the undeniable fact that Congress is broken;

It is hard to avoid attributing every dysfunction of the moment to Donald Trump’s peculiar mix of reckless talk and often feckless action. But judged on a scale of institutional breakdown, the presidency—even this presidency—is not our biggest problem….

The budget process has never been so hobbled. Not only did we come close to an unprecedented government shutdown during single-party control of Congress and the presidency, but this year has also marked the first time in the four-plus decades since the modern budget process was created that neither chamber has even considered a budget resolution.

And the trouble didn’t start in just the past few years. Presidential hyperactivity in recent decades has masked a rising tide of dysfunction—giving us policy action to observe and debate while obscuring the disorder that was overtaking our core constitutional infrastructure. It kept us from facing what should be an unavoidable fact: Congress is broken.

As the author points out, whatever measure you apply–legislation passed, public approval, member satisfaction, even just committee work or each house’s ability to live by its own rules–will lead you to the same conclusion. And while there are many reasons for the institution’s abject failure to perform, the Constitutional language is among them.

The Constitution gives the Congress powers but not responsibilities. The president is required to execute the laws and tasked with responding to changing world events on the country’s behalf. The courts have to consider cases and controversies put before them and apply the laws accordingly. But while the general scope and reach of the Congress’s authorities are laid out in Article I, the institution is not really told what it must do within that scope. That’s because the assumption was that Congress would naturally seek to control things and run as far and as hard in pursuit of power as the Constitution allowed, so that only boundaries were needed.

As everyone who has studied the Constitutional Convention knows, the Framers worried most about the legislature (the “most dangerous branch”), and the prospect that it would run rampant.

Today’s Congress simply defies that expectation. It suffers from a malady the framers never quite imagined when they thought about politics: a shortage of ambition. Members are certainly eager to retain their offices, but they seem oddly indifferent to using those offices.

The article goes on, and I encourage you to click through and read it, but even though I think much of the analysis is accurate, I also think it is incomplete. The fecklessness of our current political class is also fostered by other structural defects required or permitted by the Constitution: the Electoral College and the primary authority of state governments for elections and redistricting, to name just two.

The problem is, if Americans were to engage in a redesign of the Constitution–if efforts to hold another Constitutional Convention (an effort currently underway) were to succeed–it is almost certain that the damage done would vastly outweigh any improvements. The people most eager to rewrite our national charter are precisely the people who shouldn’t be allowed near it. It isn’t just the theocrats and the “states rights” bigots, worrisome as they are, but well-meaning folks who have very limited understandings of economic and social realities–the “balanced budget” advocates and libertarian opponents of regulation and social welfare programs, among others.

Legal structures are inevitably reflective of deep-seated cultural assumptions, and cultural changes come slowly. Until such time as an effort to modernize the Constitution can be undertaken in a less politically toxic, uninformed and polarized environment–undertaken by civically-literate, knowledgable and public-spirited “renovators”–the best we can do is “eject and elect.”

We need to eject from Congress the sorry excuses who are currently failing to act responsibly, and we need to elect people who are willing and able to discharge their responsibilities.

We need to vote as if our futures depend upon it. Because they do.


  1. Shiels writes “The people most eager to rewrite our national charter are precisely the people who shouldn’t be allowed near it.”

    Yes, this is an accurate statement because our congress is auctioned off to the bidders. When you consider that the average voter doesn’t have the cash to donate, we’ve lost our democratic republic.

    It’s very rare to find a public servant serving the will of the people over serving the will of the billionaires or corporate donor interests. The people need a referendum to overturn Citizens United and limit the money from donors. An unscrupulous justice carved in the death of a functioning political process. We need a national ballot proposal to root out the money in our political process.

    THEN, once we have a Congress responsive to the people, we can look at updating our republics document. Let’s be real, our constitution wasn’t written by the people for the people in the beginning. It’s even worse today. Other countries mock it and even Putin argues we don’t have democracy today. The Princeton study supports his case…oligarchy, oligarchy, oligarchy.

  2. The author of the Constitution understood it all relied it on the virtue of the people.

    “I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks- no form of government can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but the people who are to choose them.”

    James Madison

  3. “Until such time as an effort to modernize the Constitution can be undertaken in a less politically toxic, uninformed and polarized environment–undertaken by civically-literate, knowledgable and public-spirited “renovators”–the best we can do is “eject and elect.””

    I guess this won’t happen in my lifetime. Interestingly, I remember a time when the Congress did take its responsibilities seriously. That’s what makes today’s political climate so sad. The best thing we can do now is vote blue.

  4. It is painfully clear that in this period of our history we do not have “sufficient virtue and intelligence in the community”. Do we change the rules, or do we change the people?

  5. Listen to a recording of Barbara Jordan’s speech regarding the Constitution. In it you will hear one of the last true virtuous statesmen extolling the necessities of her role as a legislators. She was from Texas. When she died, Texas elected Louis Gohmert. Thus ended, symbolically, the virtues our founders intended for our Congress.

    The Constitution did well until our Congress lost its virtue and our voters, few that they are, started electing corrupt, ideological morons like Gohmert every chance they got.

  6. One of the things I see missing in our current elected officials from the federal offices through to the states is the idea of being a public servant. They get elected and totally ignore the we the people part. I’ve spoken with some and they blatantly said; “ I serve the people who helped me get the office.” Last I checked they represent all of us, not just their large donors.

  7. I would defer to another great document of our Founding Fathers: The Declaration of Independence.
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
    THAT my dear fellow Citizens is the recourse – at this point the ONLY recourse we have – TO DEMAND THAT THE GOVERNMENT BE ENDED AS IT IS, and to DEMAND a new vote minus the electoral college – the other path, not so nice. And don’t say; “It can never happen here!” yes it can. And it just might come to that path.

  8. Rev. Hernandez –
    THAT my dear fellow Citizens is the recourse – at this point the ONLY recourse we have – TO DEMAND THAT THE GOVERNMENT BE ENDED AS IT IS, and to DEMAND a new vote minus the electoral college –

    I’ve always been perplexed by this word “DEMAND” when used in the context of political change. I’ve been “demanding” for years that Congress: enact sensible gun laws, quit restricting my right to chose my own pregnancy schedule, begin single-payor source health care – and that’s gotten me exactly NOWHERE. I know I can demand that my 3 year old granddaughter leave the room and if she doesn’t I can remove her myself, but when it comes to Congress, well, maybe I’m not “demanding” in the right way. Can someone please explain how that is done effectively? Especially since the Republicans don’t play by the rules anymore and let Mitch change the rules whenever he takes a notion.

    I’m currently watching “The Handmaid’s Tale” on DVD and in that scenario, “demanding” got the average person into a whole lot of nasty shit. I think we might not be far from living this fiction for real.

  9. Sheila’s statement is one which we have all stated; at different times, in different words but reaching this same conclusion:
    “The dysfunctions of the system have been accelerating for some time, culminating in today’s parody of responsible government.”

    John; thank you for reminding us of James Madison’s wisdom:
    “I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation.”

    Theresa; thank you for these words, your question holds the answer:
    “Do we change the rules, or do we change the people?”

    The Constitution does not need to be rewritten; the Amendments are what require our attention; repeal Citizens United and reinstate the rights we have lost in recent years resulting in “today’s parody of responsible government.” James Madison’s faith that “the people will have virtue and intelligence to select men of virtue and wisdom” leaves the ultimate responsibility of upholding the Constitution to us and we have failed miserably. November 6th is fast approaching and we are being given another opportunity to begin reinstating those with “virtue and wisdom”. VOTE BLUE

  10. I have been aware of the need to redo or heavily amend the organic law of the land since taking Constitutional Law courses in law school, but I greatly fear the motives of present day politicians who are gung ho for a constitutional convention. These are the same people who treat the Constitution or any reasonable interpretation of it as though it were designed by Madison to fatten their wallets or fortify their present-day political position, or both.
    Using yesterday’s blueprints for solution of today’s and tomorrow’s problems is not working well, and even a redo of our organic law may not solve the problems we have today (and probably tomorrow) unless done correctly, but Sheila is right in calling the basic document outmoded and in need of updating, and since there seems to be no alternative with such atrocities as Citizens United, Hobby Lobby and their ilk of corporate and religious corruption and since I note further that we are following interpretations of the Constitution rather than what Madison had in mind when crafting it (which may itself be outdated), I fearfully and reluctantly agree that we need to have a convening of (I hope) neutral constitutional scholars who hew to the underlying Enlightenment ideas set forth by our forefathers but in clear and understandable language to suit the times rather than the views of narrow interest groups interested in enshrining their greed and power in such new document.
    Perhaps we should feel sorry for a Supreme Court burdened with Marbury v. Madison in trying to determine the constitutionality of cases brought before their justices in a Jaguar age with Model T instructions. With interpretation built upon interpretation stare decisis can become the enemy as the justices come up with seemingly irrational holdings such as “corporations are people” and other inane findings. Perhaps they need a new set of guidelines that are clear and timely, and ideally, that’s what a new Constitution would be. Yes to that and no to a convention called to enshrine greed, religious views and economic systems.

  11. The Constitution was written in the late 18th Century. The people who collaborated on writing it had their own special interests. It had a few flaws, all people were not equal. The Constitution is flexible allowing for change. The automobile mechanic who is working on your 2018 Honda, would find the manual for a Model “T” Ford rather useless. However, there is the basic, you need fuel, compression and combustion. The Constitution is the basic.

    Warnings of an Imperial Presidency go back, at least in my lifetime, all the way to LBJ. Congress has certainly placed their War Powers in cold storage. Presidents all the way back to LBJ are given a virtual blank check in conducting over seas military operations.

    The disturbing aspect of our political system is how susceptible it is to outside pressure.
    Case in point from an article in Common Dreams:

    This Sort of Spineless Corporate Pandering Is Why Democrats Keep Losing
    The DNC’s vote to reverse a ban on fossil fuel industry giving is a deplorable step backward for the party. This sort of spineless corporate pandering by the DNC is why Democrats keep losing. Over 900 candidates have signed the #NoFossilFuelMoney pledge but the party is still kissing the boots of Big Polluters. Grow a spine.

    Saying “no” to the fossil fuel industry clearly still comes hard for Democrats, which is why on Friday afternoon, at 5:00pm ET the Democratic National Committee voted to reverse a decision they made two months ago to not take political contributions for the fossil fuel industry. This had to be one of the quickest flip-flops in DNC history.

    Instead, the decision blew up in their face. Christine Pelosi, Nancy’s daughter, who had been one of the DNC officials who had worked with advocates to push for a ban on fossil fuel money, quickly started live tweeting the proceedings, revealing that she hadn’t even been consulted on the moves until they were already underway.

    Yet again, given the chance to stand with young people, progressives, and the over 950 diverse, exciting candidates who have already signed the No Fossil Fuel Money Pledge, the party caved to a few conservative unions who represent fossil fuel industry workers and have worked hand in glove with the industry to support projects like Keystone XL.
    Just when you think the DNC cannot get any worse – they do.

  12. Vernon Turner @9:00 am
    Louie Gohmert is certainly the moron you describe but if anyone is in doubt (a congressman from East Texas a moron??) I refer you to his diatribe to a willing audience, the students of Liberty University.


    and witness the vomitus from the belly of Texas.

  13. Let’s pretend that we run a company. Our product is more commodity than innovative so we are beholden to the marketing of it to sell in profitable quantities. But fortunately we have almost magical marketing means but only for certain demographics. So we do what most companies do today and heavily brand the product. We advertise that people like “this” absolutely rely on our product. They can’t get along without it. And, people like “this” are wonderful people, the cream of the crop, the best of the best, the top of the heap. They stand head and shoulders above the rest. Every one is way above average.

    We who have business experience in these days and times can list companies that follow this model successfully. It pretty much defines what capitalism today has evolved to and why Adam Smith’s invisible hand no longer exists – advertising that reaches virtually every single American for several hours every day.

    That’s in essence the Republican Party made even more extreme by the hostile take over of Thugs One and Two, Putin and Trump.

  14. As I have said to several friends, “The Constitution is only as good as the people who hold the keys to it in DC. That should scare you.” -JM.

  15. I have been re-reading the Federalist Papers. It is not the fact that the Constitution is no longer effective. Nor that we would be capable of forming “A more perfect Union today”. It is the people , us, who are no longer effective of keeping a republic. The mob has been crying democracy that the founders feared. Banal interests have overwhelmed the precious promise age of reason. Mutual societal well being have been slain by brutish greed.In their wisdom, wisdom they would it be surprised. Except, perhaps, at the fact it lasted this long.

  16. OMG,

    Wow! What a rambling piece of utter nonsense. He really has no clue. How in the world did a law school actually allow this cretin to graduate into the legal world?

  17. The fact that America has a belly full of ignorance in all of its manifestations is clearly demonstrated by where democracy (aided by a few criminal acts) has led us.

    What changed us from problem solvers into slaves voting for slavery?

    The mechanism was exactly as prophesied by George Orwell in “1984” written in 1949 and based on observations of how Hitler became a threat to the entire world.

    Orwell’s dystopia went from fiction based on reality to reality based on fiction and was repeated in less than a century after Hitler et al demonstrated its power.

    So history repeats itself but we own the blame for providing the infrastructure that allowed it to happen by our acceptance of modern entertainment as central to life today.

  18. I have often written here of my journey from Republicanism to liberal over 76 years as the movement not in my thinking but of the party.

    Part of that is the GOP branding strategy.

    Those of you who also go back to the WWII era know as well as I do how the GOP brand has evolved from primarily business focused to primarily malcontent focused as their ability to use entertainment media as a soapbox has increased.

    They cult-i-vate the easiest to demographic.

  19. Pete,

    In my latest book I have a chapter that compares the 1956 Republican Platform to the 2014 Democratic Platform. Except for union bashing in the GOP platform (Which Ike repudiated), they look about the same.

    Clearly, the GOP no longer serves their constituents. They’ve become a cult based on hate, bigotry, corruption and outright stupidity.

  20. I’m afraid they do serve their brand but they also grow their base by inflaming the victim’s malcontented worldview.

    The GOP let their entertainment partners like Fox do the marketing strategy on which lies about which issues effectively irritate the audience into actionable anger and hate and then Tweet or talk it into existence.

  21. What Pete wrote above about marketing X 1,000,000.

    The GOP became the big corporations, and big corporations know that how you make money is to effectively market schlock. No matter what business you are in, there are people fighting the good fight selling quality products and services to a minority of customers who are smart enough to know the difference, and there are the big corporations using advertising and promotion budgets to trick the unwashed masses into buying garbage in a pretty package.

    This is what we face, and no governmental system will overcome it. When the evil are clever enough to fool the masses, this will be the result.

  22. The constitution gives power, but not responsibility to congress. That power shouldn’t be up for sale to the highest bidder. Citizens United needs to be reversed!

  23. Money is the root of all evil. Campaign contributions from the monied class have ‘purchased’ public opinion through the airways to elect supportive politicians, to gerrymander, and increasingly to secure appointment of favorable judges to protect and sustain all the above. We have to get large contributions out of the system.

  24. There was a time when businesses made money by the innovativeness and quality and competitive price of their goods and services. Now money is made primarily by marketing.

    Republican politics followed suit.

  25. Amid all of these great comments, I feel that we are missing one key ingredient here. Weak government is the ideal of the bully. A dysfunctional government means that nobody tells the rich and powerful that they can’t pollute, they can’t cheat their employees and they can’t cheat their customers.

    Republicans, at least since Reagan, have been screaming that government is the problem. Along with the fantasy-prone Ayn Randians, the idea of shrinking the government (until they can drown it) has been the goal of the Republican Party. I remember how Sonny Bono ran for office because he didn’t think the government should be able to regulate anything that the rich, powerful Sonny Bono wanted to do. Weak or disorderly government is the goal of many on the Republicans in the party’s current incarnation.

    As an aside, old style business people liked stability, but then again, they also liked to plan for the long term. The new breed of business people want to grab the cash and leave – if the company fails after they finish with it, they don’t care.

  26. Corporations are not people under the Bill of Rights. Any change must start with that assumption. I will never forgive the ACLU for supporting Citizens United. We must get rid of the money. But there is so much cash and pressure behind it, I cannot think for the life of me how to do so, short of a revolution. Maybe that is the answer.
    in any case yadda yadda yadda – VOTE BLUE.

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