Kim Wehle writes of the importance of the Constitution and how it is under threat.
How to Read the Constitution—and Why by Kim Wehle, Harper Paperbacks, 352 pages, June 2019, ISBN 9780062896308
Tomorrow, those of us in the United States of America celebrate our Independence Day. Just 243 years ago that the Second Continental Congress, in its infancy and infinite wisdom, signed the Declaration of Independence. The War of Independence would, of course, drag on for seven more long years, until we finally won our freedom in 1783.
But the document that we credit most with preserving the personal freedoms we won in independence, the Constitution of the United States of America, wasn’t even written until four years after that—a full decade after independence was declared. It wasn’t ratified until 1788 and didn’t take effect until 1789. For those who believe what we need today is another era of revolutionary change rather than incremental progress, it is a good reminder that incremental progress can lead to revolutionary change. It is also a reminder that we had to fight and think and negotiate hard to secure our protection from tyranny—and that the means of securing it has been the very Constitution we designed, not the war we fought. It was as imperfect as the men who wrote it. But it was what set the structure of our government, and established us as a commercial republic—both of which, in addition to the rights enumerated in the Constitution, have helped ensure and even extend our individual rights.
Before we go any further, you may be asking how does being a commercial republic help extend rights? Well, besides Alexander Hamilton’s argument that “lessening its need of external commerce” with Great Britain would “render it still securer against the encroachments of tyranny,” Congress has used its power to regulate commerce between states to fight institutional racism and discrimination. It was on the powers given to Congress under the Commerce Clause that the Supreme Court decided in 1964 that the Civil Rights Act rested. As Kim Wehle writes in her new book How to Read the Constitution—and Why:
The government is already prohibited from engaging in such discrimination under the Constitution itself. But the Supreme Court held that the Equal Protection Clause and other parts of the Bill of Rights didn’t bind private parties, so companies were free to discriminate prior to 1964. The court upheld the Civil Rights Act on the rationale that “voluminous testimony [before Congress] presents overwhelming evidence that discrimination by hotels and motels impedes insterstate travel.”
Wehle, a Professor of Law, former Associate Independent Counsel in the Whitewater Investigation under Kenneth Starr, and Assistant U.S. Attorney under former Attorney General Eric Holder, has written a great exploration of our government’s founding document and its importance. She writes:
The question for generations … is whether the framers of the Constitution got it right. In order to begin to answer that question, every generation needs a basic working knowledge of what the Constitution does (it sets up a structure of government and lists individual rights) and what it doesn’t do (it does not crown a king). This book helps build that knowledge and also answers questions such as:
What are the powers of government? What are the limits on those powers? And what does it mean to have “rights” under the Constitution?
They are important questions to consider, as “the structure of the Constitution is being tested like never before”—not only, or perhaps most importantly by the current occupant of the White House, but also by hyperpartisanship, a money-driven and winner-take-all system of politics, and an abdication of responsibility to check the power of the executive branch.
The first two questions—on the powers of government and their limits—are largely answered in Part I of the book, discussing the structure of government. It is here that we’re walked through the separation of powers, checks and balances, and the ways in which powers overlap the three branches of government and have blurred over time. You'll likely learn some things that will surprise you, like the fact that the alphabet soup of federal agencies, which both make laws (regulations) and adjudicate disputes on their own (ostensibly exercising powers under the umbrella of the executive branch that appoints agency heads that are constitutionally in the purview of other branches) are not, according to “the plain language of the Constitution,” actually constitutional. And yet, created under FDR at the height of the Great Depression to help manage the economy and stave off future financial catastrophe, they have helped govern life and manage the economy—and much else besides—for almost a century. You will also learn that “the plain language of the Constitution” is not so plain, after all, and that the idea that there is, or could be, “a strict reading of the Constitution” is a myth. This is why Wehle tells her first-year law students that the primary thing they need to do is learn to read, because the kind of reading required by the Constitution is fundamentally different. It is a skill that she likens to the reading of poetry, one that requires isolating phrases, and even individual words, that are open to interpretation and are either deliberately vague or made so by history. What does the word executive mean, or the word shall? What are the arms we have a right to bear under the Second Amendment? (Certainly not plutonium, she insists.) What does the protection guaranteed in the Fourth Amendment against unreasonable search mean when 90 percent of all the world's data has been created in just the last two years, and so much of our personal information is available electronically?
The “rights and freedoms guaranteed by the Constitution,” writes Kim Wehle, “are like winning the lottery.” Perhaps the most surprising thing to me, then, is that the first ten amendments of the Constitution that are the bedrock of those rights, added only to appease anti-federalists who opposed the entire project, were not a part of the original Constitution:
When the Constitution was written, in Philadelphia in 1787, it did not contain a bill of rights.
The Bill of Rights wasn’t written until 1789, and not ratified until 1791.
But perhaps the biggest takeaway (in my reading, at least) is that even as progress has continued to be slow, that it has been unevenly experienced and continues to be so, that we sometimes take a step back, that the arc of the moral universe is long, we have tended to move in a direction that secures the equality of civil rights envisioned in the Declaration of Independence. Revolutionary progress has never been a sharp turn, but rather the progressive motion of a self-governing body around the two different constitutional axels of government structure and individual rights. And much of that motion, much of what we consider American values, aren’t actually enshrined in the Constitution, but in social norms. Finally, while the revolutionary progress of ensuring and extending civil liberties and rights has been slow, reactionary progress that breaks with norms has often been swift, and long-lasting when not addressed quickly. That is:
When government actors push existing boundaries, they expand their power. Usually for keeps.
“The Constitution is the boss of all laws in the United States,” writes Wehle, “but much of its strength is based on social norms and values .…” That a president serves only two terms was a norm for 150 years, until FDR broke it by being elected to four—prompting Congress to pass a law decreeing a two-term limit in 1947 to re-establish it. What happens when democratic norms and values are ignored, or when the entire social contract is not only fraying but has been shredded, as it has been today? Love him or hate him, whether you find him refreshing or endlessly frustrating, Donald Trump’s defining trait may be shattering such norms. One of the earliest and most dramatic examples of this was calling for his political opponent, Hillary Clinton, to be jailed. There is a rather thin line, in the sense of realpolitik, from calling for the jailing a political opponent and actually having the power to do so. It is a difference in how strong the democratic norms and the rule of law are. We can see an instance in which such norms and rules were not sufficiently strong enough in Ukraine, whereupon defeating Yulia Tymoshenko in a presidential election—Viktor Yanukovych trumped up charges against her that ultimately led to her imprisonment. The similarities are a little eerie, in that both Clinton and Tymoshenko we see both establishment figures aligned with Western Europe and the rules-based order that has governed the west since WWII, while Trump and Yanukovych both have some shadowy ties to the primary adversary to that order, Russia. (One other similarity, that both Trump and Yanukovych both employed Paul Manafort as a key figure in their respective campaigns to gain power, is a little more direct.)
Wehle argues that an “extreme unitary executive view” of the law, one that Trump seems to ascribe to above and beyond any previous president—in which there is no limiting principle on the executive power to execute the law, or to ignore and not execute the law if they so choose—cannot be correct because it “would elevate that power above other provisions in the constitution.” She writes further:
But from a structural standpoint, it also means that the president could run the Oval Office like a dictatorship or Mafia ring—those people who line his pockets with enough cash can commit crimes, while those who turn him down get prosecuted and potentially jailed. … Assuming he has physical access as president, he could empty the federal treasury into a bank account in his own name and get away with it.
Whether that is possible, of course, is whether it is allowed, or whether our social norms and democratic values are strong enough to reign in such executive power. And as we learned in Moneyland, this is a pretty accurate description of what happened in Ukraine under the leadership of Yanukovych when the judiciary and legislative branch, along with the media, would not or could not hold him to account. He was eventually removed from office when the people themselves took to the streets, but very little of the approximately $70 billion in treasury funds he is estimated to have transferred to foreign accounts through the rampant corruption and cronyism he bred will ever be recovered by the people of Ukraine.
Wehle also stresses that “what people consider core American values—such as the opportunity for financial success and upward social mobility, rewards for hard work, cultural diversity, and unrestricted individualism—may not be expressed anywhere in the Constitution.”
If they are taken for granted or not socially enforced, these values will cease to reign in America.
The same is true, she writes, of expectations we have of our elected leaders—that they will be relatively transparent, will appoint competent people, that they will accept the outcome of popular elections, and will act with decency and decorum in a way that is generally considered appropriate for the office they hold.
Wehle explains how, while the framers did not foresee the way in which money, big tech, or gerrymandering could undermine the system of government they envisioned, they “did anticipate that deep ideological factions could rip the country apart and leave space for the kind of autocracy that they denounced in the form of the British monarchy.”
We can bemoan negative campaigns as “dirty politics,” but they are nothing new. The battle for the presidency between Thomas Jefferson and John Adams was ugly even by today’s standards. Jefferson hired newspaperman James Callendar to smear Adams, a tactic that backfired on Jefferson when Callendar went to jail for slander. He turned on Jefferson upon his release, writing stories of how Jefferson had fathered children with his slave, Sally Hemings. It was scandalous, of course, and—as DNA tests of Hemings’ descendants proved in 1998—true. These were not flawless men, nor was the document they helped produce. But it set up a governmental structure and bill of rights that helps perfect the union they established.
Most importantly, Wehle reminds us, the government derives its power from “We the People” and “not some piece of paper.” That the preamble of our constitution is written in such a large script is a reminder that our leaders are accountable to us.
Under the Constitution, the people are the sole source of governing power—elected and appointed officials are not entitled to it. Every exercise of their power flows through—not from—the Constitution. And every person exercising that power remains ultimately and exclusively accountable to the people.
That government authority exists only with “the consent of the governed” is, of course, always true, but the ability to hold it accountable and the degrees we must go to in order to do so are meaningful and dramatic. There is a difference between free and fair popular elections and the power to redress the grievances of citizens to an impartial judiciary—a power also not necessarily set in the Constitution, but by precedent—and having to take to the streets to force out a would-be dictator abusing their power and ignoring the rights of the governed. There is a difference in the ability to operate a business freely without bribing government officials and to be free from competing against companies given contracts based on bribes rather than ability. There is a difference between calling for imprisoning political opponents and actually being able to do so. It is a difference that is eroding in the winner-take-all system of governing that has crept into our current era, fueled by dark money in elections and gerrymandering in which the power of the minority party in government has been reduced to such an extent that is almost nonexistent. When elected officials are allowed to pick their voters, rather than the other way around, the ability to hold elected officials accountable through electoral means withers. Dirty politics is nothing new, but dark money politics is.
The painful truth is that the individual voter has been substantially cut out of the democratic process, and we don’t even realize it.
The genius of the constitution is that it structured the government in a way that provides checks on the most powerful while guaranteeing the rights of the least powerful. It has been a long and slow journey these past 243 years, and we are still far from being the land promised in the Declaration of Independence, in which we held 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.” But to secure these rights, we did in fact institute a government, deriving its just powers from the consent of the governed. That consent is given through the Constitution and, as Wehle concludes, it “has served us well.” It is worth preserving, and worth strengthening by holding our elected representatives accountable, and by enshrining more of our democratic norms into the law itself.