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September 30, 2006

Oligarchy

In 2002, Congress passed the Bipartisan Campaign Reform Act, better known as McCain-Feingold after its two primary backers in the Senate. President Bush, despite earlier vows to veto the bill, signed it on March 27, 2002, assuming that the Supreme Court would trim out the areas he considered unconstitutional. Instead the Court endorsed the BCRA in its entirety, allowing a number of rules that seem clearly unconstitutional to become federal law.

Last week, the Senate passed the Military Commissions Act of 2006. Senator Arlen Specter, despite opposing the law's lack of habeas protections for detainees and a complaint the bill was 'unconstitutional on its face,' voted for the bill. When asked why, Specter explained that he expected the Supreme Court would eliminate the unconstitutional provisions.

As CATO's Tim Lynch notes, the Constitution doesn't defend itself from encroachment. It's just an old piece of parchment. The only thing that keeps it in force is the willingness of people to protect it. When those safeguards break down, we end up...well, where we find ourselves today, in a nation where the Constitution is a nice thing to show tourists, but otherwise it's just a document that has constantly declining influence on how we govern ourselves.

The genius of the Constitution was that it divided power in so many ways, the founders expected that the natural urge of men to seek power would keep the government generally balanced. When the executive amassed too much power, the legislature and judiciary would rein it in. If the judiciary got too big for its britches, it was easy to curtail. (John Marshall has made his decision; now let him enforce it. I know, Jackson never actually said it, but I'm invoking the Liberty Valance rule.) And the legislature, with its mix of state power and mob rule, would constantly be checking itself between the House and the Senate. Over the past two hundred years, however, these checks and balances have slowly eroded to naught. The biggest culprit in this has been faction, or as we refer to it today, party politics. The founders failed to foresee that loyalty to party might outweight loyalty to the branch one occupies and loyalty to one's own political goals. This has led us to the present moment, where a combination of Republican dominance in the executive and legislative branches has left us with no real checks and balances to protect the Constitution beyond the Court, which is one retirement or death away from swinging into the Republican camp as well.

This is not a new phenomonon, although the current Republican dominance has highlighted it to a greater degree than usual. The nation has been moving in this direction for more than 30 years, as the judiciary has assumed greater and greater powers as the President and Congress abdicated their responsibilities and instead came to depend on the Court to protect them from their own foolishness. But the Court is nothing more than nine men and women. Well-meaning, I'm sure, but fallible and as much subject to error as any of us are. And the examples I note above show just where too much reliance on a small group of people can lead us.

Ultimately, the Constitution means what we all think it means. If enough of us believe that the Constitution protects Nazis marching through a Jewish neighborhood, than it does. If we believe that it permits the torture of prisoners in violation of our treaty committments...well, then it does. A piece of paper cannot force us to do anything we are not willing to do. For the past several decades, we have all decided to agree that the paper means whatever nine men and women say it means. Now, suddenly, people who have considered that a fine state of affairs have figured out that, if the nine men and women say the wrong thing, we could run into a great deal of trouble.

Too bad it took them this long to figure it out.