Although imperfect, the U.S. Constitution has endured in part because of its design, its foundational concepts, and because it was not imposed but rather involves the consent of the governed. Considered by many to be the longest functioning democracy (technically a republic), America today faces a number of contemporary challenges to its constitutional order.
The first contemporary challenge to constitutional order involves a living Constitution and an effort to discard generations of legal precedent and related stability in favor of a myopic reimagining of what justice must look like for perceived oppressed classes. The ends always justify the means in this view, and process is overlooked if necessary and thrown overboard whenever possible. As Justice Scalia observed, some people want certain changes that the Constitution does not permit, but the whole purpose of the Constitution “is to prevent change” (Franck, 2019). Assuming the worst of humanity might one day push to the fore, a primary aim of the Constitution was to create a government with enough power to, when necessary, act on a national level but without so much power as to jeopardize fundamental rights (Biden, 2021).
A second contemporary challenge is accumulation of power in the executive branch, which is designed to be co-equal with the other two branches. Congress has gotten lazy and has outsourced responsibilities to departments and agencies that fall almost exclusively under the purview of the executive branch. Many administrative law scholars admit that administrative law by necessity goes outside of the law (Hamburger, 2014, 19).
The third danger involves plans to reorganize the court system to permanently enshrine one party’s ideology. When I was in the fourth grade, I learned about President Franklin Roosevelt’s court packing scheme (and Democrats are still playing the same game). For decades there has been dispute over the proper role of the judiciary in our constitutional system of government. President Roosevelt himself appealed for public support during one of his famous fireside chats: “We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court, and the Court from itself …” (Roosevelt, 1937).
Another challenge to the constitutional order is the reliance on executive treaties as opposed to Senate-ratified treaties. To the outside world, the piece of paper looks the same, but treaty ratification ensures that the country is on board with the price of implementation in what is designed to be an enduring relationship. The debt and related deficits are also growing problems, as a larger percentage of funds becomes non-discretionary due to interest payments. Once the full faith and credit (Article IV, Section 1[1]) of the government comes into question, interest rates spike and problems compound. When public debt is extraordinarily high, resolving the debt burdens usually involves a painful transfer from savers to borrowers (New York Times, 2019). Another challenge to the constitutional order is the outsourcing of essential governmental functions to the private sector because expertise in critical areas should reside within the government, and there is a strong likelihood of regulatory capture (Hamburger, 2014).
The goal of all good statesmen is to encourage liberty and prevent tyranny but, as Montesquieu and Tocqueville both noted, tyranny is often slow and difficult to detect. The principle of republics is love of homeland and fear of despotism. When passion and appetite run wild without direction, nothing can be cultivated or nurtured for future generations (Danoff & Ebert, 2011). Such is our reality today where the creeping modern reinterpretation of American constitutionalism combined with a shift in the relationship of the state to the individual (and society more broadly) have resulted in challenges to even the basic functions of government. Some have argued that the tripartite system of American government is not a model that can be successfully exported because of inefficiencies present when multiple factions of the government are divided and competing for authority and resources. However, the fact that the government is not automatically endowed with unlimited power and is not unchallenged when seeking to inflict its will upon us is a success of the American republic.
References
Biden, Joseph R. The Constitution (2021). https://www.whitehouse.gov/about-the-white-house/our-government/the-constitution/.
Danoff, Brian and Hebert, L. Alexis de Tocqueville and the Art of Democratic Statesmanship (2011).
Franck, Matthew J. Countering Challenges to the Constitution. Arizona State University School of Civic and Economic Thought and Leadership (2019).
Hamburger, Philip. Is Administrative Law Unlawful? (2015).
Higgs, Robert. Crisis and Leviathan: Critical Episodes in the Growth of the American Government. The Independent Institute (2012).
Fischer, Kahlib. Leadership & Statesmanship: An Introduction. Faculty Publications and Presentations (2012) 522. https://digitalcommons.liberty.edu/gov_fac_pubs/522.
Roosevelt, Franklin.D. A “Fireside Chat” Discussing the Plan for Reorganization of the
Judiciary (Mar. 9, 1937), reprinted in 6 The Public Papers and Addresses of Franklin D. Roosevelt 122 (S. Rosenman comp. 1941).
The New York Times Editorial Staff. Personal and Public Debt: From Student Loans to National Debt. New York, NY: Rosen Publishing Group (2019).
United States Constitution, Article IV, Section 1 (1789). https://constitution.congress.gov/browse/essay/artIV_S1_1_1_1/).
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[1] Article IV, Section 1 reads in full: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”
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