A possible fatal flaw? Part I

Since 1779, the United States has been governed by the Constitution promulgated by our founders. They spent an entire hot and humid summer in Philadelphia going at it, but in spite of their many differences, managed to hash out something that they could all get behind. Of course, “they” were all from rich and influential families, and pretty much represented the people at the top of the social/economic ladder which was vying for control of the colonies with the rich and influential of the British empire of the day. More about that another time.

But the initial point I’m making here is that since then, that Constitution has managed to function more or less intact and in the manner in which those founders had intended. Even, I might add, in the ways in which it has been amended over the centuries. So far, so good, right? Yeah, but kinda like the guy who jumped off the Empire State Building might answer that question as he approaches the 13th floor, and keeps rapidly falling. At some point, the flaw in his plan is going to bite him in the ass.

When I went to school lo so many decades ago in the great state of Texas, we were taught that our (mostly) perfect Constitution had a system of checks and balances that was meant to (and supposedly does) protect our freedoms, our rights, and our form of government for the good of posterity. Up until a decade or so ago, I still believed that.

Today? I feel like that guy around the 13th floor thinking “so far, so good”, yet, thanks to a recent idiot we elected to the Presidency, I can now see the ground rapidly approaching, and am now wondering how soon that flaw is gonna bite us in the ass.

Oh? What flaw? (You might ask)

Hey, I’m glad you asked. I’ll get to that.

But first, just what is the purpose of the Constitution? Just what does it DO, and what SHOULD it do? A common response might be to quote the Preamble of that document, so let’s look at that.

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[note 1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Some might just point at that and say, “there’s your answer!” But IS it? I don’t think so. That outlines WHY a Constitution was crafted — the things it was intended to do for us, yes. All of that is what one would expect a government to do, and yes, the constitution did outline a government for us in order to accomplish those purposes.

But what basic things should such a document DO? What are the basic functions of a Constitution? HOW does it accomplish those lofty things our founders wanted to preserve for posterity?

As I see it after decades of observing our country operate, both as a citizen with a degree in Public Administration and as an employee of that government, such a document has three basic functions.

First, as mentioned, it outlines the basic design, function, and limited powers of a government.

Second, it outlines the basic RIGHTS of the people (who have been defined as everyone living under the jurisdiction of the United States Government, not only citizens).

Third (and this is the most important), it should establish the basic design and function of a system of ENFORCEMENT for the provisions contained within it.

Have you noticed that flaw yet? Actually, there are two, and allow me to mention the first and most easily mentioned.

In the second point, our Constitution was (belatedly) provided with the Bill of Rights, which outlines the RIGHTS (hey, its right there in the name!) of the People. What it failed to mention are the RESPONSIBILITIES of the People.

Nuff said, given the failures of the right wing today to carry out their responsibilities in caring about our country’s health by wearing masks.

But the second flaw? Noticed that yet?

So, to prepare you, go back to the text of the constitution. Read it. Pay particular attention to the design and function of the government, and those much vaunted “checks and balances”. Once you’ve done that, go online and find some news articles about Donald J. Trump and his well known violations of the two Emolument Clauses, especially the ones outlining the court filings of a lawsuit by INDIVIDUAL MEMBERS OF CONGRESS seeking to get a court ruling against Trump for those violations. Now, I want you to notice two major points.

First, that lawsuit was filed by individuals. NOT the Department of Justice. Second, it was filed as a CIVIL suit, not a criminal one. So, even had it proved successful, what would have been the possible consequences to DJ Trump? A court order to stop violating the law?

Ask yourself. Had that happened (it did not), WHO would have enforced that ruling? No, stop and think about that. When a Federal Court rules in a particular way, exactly who is responsible for enforcing that ruling if a lawsuit loser refuses to obey? Not the judge. He/she only issues the order. So, who forces the loser to obey? Or locks the loser up when they fail to obey?

Law Enforcement.

And WHO controls the Federal law enforcement agencies? Oh, yeah, the PRESIDENT. You know, the guy the lawsuit was filed AGAINST in the first place.

Have you figured out what the flaw is yet?

Lack of a built in mechanism for enforcing THE CONSTITUTION.

“But wait”, you say, “what about the Department of Justice? Or the Courts?”

Well, I covered the DOJ already — controlled by the President, right? I think our experiences with Bill Barr being a toady to Trump spells out the problem with expecting THEM to enforce the law against a rogue President.

The courts? They have NO enforcement power. They have the power to issue rulings and orders. But the powers to enforce those rulings and orders are held by the Executive Branch. Controlled, again, by that rogue President.

So, allow me to spell it out. Court rulings and orders are toothless unless there is someone with the constitutional power to arrest someone and lock their asses up. Like it or not, governmental power is all about FORCE. The legal ability to use armed force to threaten someone with being imprisoned, or failing that, death by force otherwise.

We dress all that up with limitations on that power, but in the end, an intransigent Congress or President is ONLY deterred from taking power into their own hands by the laws that justify imprisonment for doing so, backed by the force wielded by either the military or officers of the law who carry guns.

For the last 230 or so years, our system has worked fine under that lack because it depended on people being in charge who were possessed of enough integrity and trust in their fellow wealthy power sharers that such threats of force held real consequences. In other words, others in the government would actively enforce the rules.

Such is no longer the case. The much heralded “comity” that used to hold our system together has disappeared. (Thanks, Newt!). Because of the disintegration of that trust and integrity in the 1990’s, our system no longer holds the threat of force a government must be able to wield in order to deter law breakers. In fact, this is the perfect case in support of our founders’ mistrust of political parties! It is also proof of the wisdom of the founders in creating a system that ensured that the Vice President was NOT of the same party of the President, but was his opponent in the election that he’d won. It was the threat of that opponent replacing him that deterred Presidents from the threat of impeachment. (Mostly)

In order to fix our system, we need to do two things.

First, amend the Constitution to outline citizens’ responsibilities to both the government and to each other.

Second, amend the constitution to change the basic design of our government to allow for enforcement with teeth that threatens dire consequences for those at the top who break the rules. That means we must ensure that even a President who engages in treasonous or illegal behavior can CLEARLY be indicted and tried (and temporarily removed from power) while in office.

Stay tuned — there’s more to this, related to my little hint in the beginning about the wealthy and how they control our government. (Hint — it isn’t ONLY because of money.)