- The Washington Times - Wednesday, August 1, 2007


It is about time someone taught the Constitution to the professors, lawyers and journalists. In responding to President Bush’s recent assertion of presidential control over U.S. attorneys, both a conservative newspaper editor and a progressive professor used the exact same word, “astonishing,” to express disbelief that a president could do such a thing.

Almost no one understands the U.S. Constitution. When the new Democratic Congress recently began aggressively challenging the president’s right to fire U.S. attorneys, the assumption was that Congress would file such a challenge and that the Supreme Court would decide it. Even if the president ultimately prevailed, he would be hobbled for the rest of his term fighting in court to convince the ultimate power he was right.

Contrary to how the liberal professors teach the Constitution, the courts are not the final power. The U.S. has a separation-of-powers government where no one branch has the ultimate power.

When the White House announced it would not allow U.S. attorneys to enforce a contempt proceeding threatened against his chief of staff, congressional leaders were outraged. Senate Majority Leader Harry Reid called it “an outrageous abuse of executive privilege,” Sen. Charles Schumer said the president was “hastening a constitutional crisis,” and Rep. Henry Waxman moaned this “made a mockery of the ideal that no one is above the law.”

Did these hyper-aggressive legislators think the Framers would leave the president defenseless against harassment by Congress? Did they think the president reported to the Supreme Court? Professor Mark Rozell of George Mason University apparently did, saying this would mean “the president’s claim of executive privilege trumps all.” Well, prof, no it does not. The Constitution has a solution. While no court can touch him, Congress can impeach the president. That is how the law is supposed to work.

One cannot blame them, really. The Constitution goes against every conception about how government and society should work. Who does not believe someone must be in charge? As professors put it, sovereignty must be vested somewhere. Otherwise an organization has no center and supposedly cannot work.

But the U.S. Constitution is based on the principle of separation of powers, where no one power rules but where the different institutions check and balance each other’s power. That there was no center to resolve differences is why every intellectual of the Founding era — and every era since — predicted it would fail. The drama of the Constitution is that such an “illogical” arrangement is in fact the world’s longest lasting government.

The Civil War most clearly demonstrated how division of power really works. In 1850, the Supreme Court — in its first claim of unconstitutionality unrelated to protecting its own judicial independence — declared the Missouri Compromise over slavery void. The court solution prevailed but judicial supremacy did not last. Frustration led to the election of Abraham Lincoln and a more Republican Congress to break the logjam. But the Southern states refused to accept this and exercised their claimed right to secede, which led to the War Between the States.

To execute that war, Lincoln held 13,535 prisoners without habeas corpus protection — including 31 Maryland state legislators (by comparison, Mr. Bush was a piker). When the Supreme Court ruled that the president had acted unconstitutionally in exercising that power, Lincoln refused to allow enforcement of the judicial order.

That is how checks and balances really work. No one is ultimately in charge. In different circumstances, one institution is more powerful but separate powers allow flexibility to overcome the previously powerful. The Supreme Court set the whole pre-Civil War policy but was ignored a few years later. The states dominated in the early years and caused civil war. President Lincoln responded almost as a dictator, ignoring habeas corpus, but was followed by an almost helpless Andrew Johnson. Lincoln dominated Congress but the Reconstruction Congress simply ignored the president.

At any one time, an institution dominates — as the Supreme Court and national government tend to do today — but the Constitution always allows for another day and a different correlation of forces.

Even most Americans would not recognize the reality of the Founders’ Constitution. President Bush has provided a great learning experience by demonstrating executive power; but the Constitution is much more. It really is a miracle that it all works. No one in his right mind would divide power into so many parts if the idea were for the government to be the major decisionmaker for society. That is why the Founders also limited the powers of the national government and adopted the 10th Amendment.

When one branch pushes too hard, the others strike back. This is what happened with the U.S. attorneys issue recently and many times throughout American history. That is why the Constitution survives. It is flexible enough to take whatever comes.

Donald Devine was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University and editor of Conservative Battleline Online.



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