For all his faults, Joe Biden at least paid lip service to the U.S. Constitution during Democrat primary debates last year. When questioned about the president’s constitutional ability to implement unilateral gun-control measures, his recently announced running mate, Kamala Harris, laughed in response, quipping, “Instead of saying ‘No, we can’t,’ let’s say, ‘Yes, we can.’” Contrary to what Harris may believe, however, the Constitution is a document written to say just that: no.
The Founders created the Constitution to protect against humanity’s worst instincts — everything from despotic rule to the tendency to act quickly and thereby irrationally. Unfortunately, this agreement about the need to restrain both government overreach and passionate recklessness has dwindled until, like a child’s disregard for parental constraints, a vice presidential nominee laughs off its invocation.
The Constitution was carefully crafted to stymie the ability of one’s will to rule all. They envisioned a country governed negatively, with a founding document designed to keep government and mob power from oppressing individuals, leaving them free to live.
Nowadays, both parties bristle at the constraints the Constitution places upon them. One party openly laughs at the idea that perhaps their party needs a check, while the other feigns its regard but subverts it regardless. Both stances bode poorly for the future of genuine constitutional governance.
Throughout the Federalist Papers, the authors set a seemingly low-bar: craft a country to live in peace. As students of world history, however, the Founders knew that peace among states for an extended period would be a historical aberration. To assume peace between geographically close states, Hamilton writes, would “disregard the uniform course of human events and set at defiance the accumulated experience of ages.”
War, genocide, and starvation-level poverty have historically characterized the human race. Hamilton recalls the history of Europe to emphasize the near unending war on the continent. Extended peace was a rarity.
In Federalist No. 10, Madison admits two means to end factionalism and conflict: the destruction of liberty or the unanimity of ideas. The former is the despotism they sought to prevent, and the latter is an impossibility. As such, they saw an impedimentary constitution as the way to end this inexorable regress to war. Factionalism must be managed, not stamped out.
Checks upon the exercise of power fill the Constitution. Each branch can impede the other, powers are designated, and avenues for removal are outlined. Term limits prevent despotic, lifetime rule but also stymie the passions of the populace from interchanging their representatives whenever the winds shift. As a last line of defense, The Bill of Rights acts as a final rampart around our essential liberties.
The Constitution expresses the exact sentiment that Harris laughed off: “No, you can’t.” That we’ve forgotten this central theme or, even worse, now decry it, leaves our country worse off.
A few modern movements seek to outright reject the impedimentary vision of the Constitution. Far-left socialists reject the Constitution’s limitations upon economic regulation. Catholic integralists warn of the Constitution’s excess deference to freedom, both economically and morally, preferring their faith’s appeals to “the common good” over liberty. Both want to wield the power of the federal government to remake American culture in their image.
To some extent, the socialists and integralists pose a smaller threat than others do. They’re open about their intent; they acknowledge and express outright their discontent with the Constitution. More concerning, however, are those within our political mainstream who, while they may nominally express a reverence for the Constitution, still trample through its clear and present “no’s” regardless.
Perhaps even more telling than Harris’s laughter was Sen. Elizabeth Warren’s response to a comment questioning the constitutionality of her proposals. She wondered aloud why anyone would run for president “to talk about what we can’t do.” In the same vein, Obama famously proclaimed, “If Congress won’t act, I will.”
Such expressions normalize a vision different from the Founders’. Constitutionally speaking, if Congress doesn’t act, nothing happens. That’s not a bad thing. If partisan divides or lame-duck executives find themselves unable to pass a single piece of legislation, then all will be as the Founders planned.
Gridlock forces politicians to act prudentially and cautiously. Laughing at the Constitution should be laughable itself. What they laugh at is that human nature has impulses that must be constrained. What they laugh at is the suggestion that their whims, emboldened by cheer and applause, are the exact political movements that require constraint.
The disregard for constitutional order isn’t limited to campaign declarations. Former President Obama used an executive order to revolutionize immigration without the consent of the American people’s representatives in Congress and the Affordable Care Act gives government power well beyond its constitutional bounds. Similarly, for his own pet project, President Trump appropriated funds that Congress delegated to the military and threatened to alter tax-law without the consent of Congress.
In Trump’s defense, he’s functioning within an already broken system. While congressmen and -women still love to equivocate on C-SPAN, they eschew writing legislation. In a rhetorical flair, they call upon our government to deploy the National Guard but place no legislation on the Senate floor to compel or enable such a course. They write resolutions on climate change that commit no money nor delineate any actionable steps. The executive branch oversteps its constitutional bounds and Congress lets them be.
The fallout of this disregard snowballs. Every piece of bad legislation rammed through by executive order or Supreme Court decree further entrenches the norm of non-congressional action.
Our Vitriolic Politics
The ramifications of this disregard for checks and balances and the separation of powers are numerous. One negative consequence, in particular, stands out as one reads through the Federalist Papers. The authors worried about factions — for example, the North and South warring over differing economic interests — and so delegated much power to the states, allowing them to coexist with differing legislation and cultures.
We find ourselves in the opposite situation to the historical context that surrounded the Constitutional Convention. The Articles of Confederation were too weak to hold the nation together. Hamilton, Jay, and Madison worried that the states would slowly drift apart into separate countries and eventually wage war. Today, with an intrusive federal government, our politics pushes states too close together.
In place of slow, deliberate action that gives deference to the individual circumstances of each state, parties ram legislation through the executive order or Supreme Court decree. Instead of allowing California, Texas, Wisconsin, and Maine to have their own laws, our current federal government increasingly forces them to legislate in unison.
As such, editors in New York complain about drag-queen reading hours in California 3,000 miles away. Under a federal government that respected its boundaries, one state could have them and another wouldn’t. Once human sexuality has become a federal issue, however, the cultural norms of a town across the country suddenly become an issue for all.
Similarly, when many ask the Department of Education to have a plan for all schools, their closures become a heated issue. When we look to the executive branch to enact sweeping legislation, a small town in Ohio rightly complains about mask mandates in Michigan. If we continue to cheer on our politicians who refuse to yield to the constraints placed upon them, our politics will grow ever more vitriolic.
Unfortunately, those who genuinely call upon the Constitution to limit any power face ridicule. John Delaney and Joe Biden are laughed and jeered down in debates. Ben Sasse is openly mocked on Twitter and Neil Gorsuch is called a traitor to his party.
On the contrary, we should cheer those who call their own party into question on constitutional grounds. We should expect presidential nominees who stress what they cannot do as much as what they can. Harris may be the one audibly laughing at the Constitution. In reality, neither party seems to take it very seriously.
The Founders created the Constitution to protect against one of humanity’s worst instincts — the desire to get things done quickly and irrationally. Because those checks have been obliterated, we see the disgusting way our politics has functioned as of late, ramming through divisive legislation even when a consensus holds “maybe that’s not a good idea.” When we see such unconstitutional results amidst the heat of growing national discord, we should all be thinking one thing: maybe we shouldn’t abandon the Founders’s advocacy of prudence and caution.