The end of the constitutional republic?
Posted: December 04, 2008
1:00 am Eastern
The events that mark the end of one form of government and the beginning of another are more easily perceived and understood in the aftermath than by those caught up in the events and circumstances that constitute the transformation. The passions and affections of the moment interfere with the detachment that makes it possible for the mind to see the true significance of issues and decisions. Some things that seem large and momentous are in fact the exaggerated mirages of transient passion; others dismissed as sideshows will be seen in retrospect as crucial to the main event.
At the moment, these different possibilities may be ascribed to the same occurrence. A great storm of interest and celebration rages at the prospect of the first "African-American" president, and the supposed implications of his election as a breakthrough in the history of "race" relations in the United States. Yet, because it centers on a man who has in his background and character no ties to the actual people and events of that history, historians will have to look elsewhere for the event that truly represents the denouement of the story whose greatest turning point remains the first American Civil War. By contrast, scant attention is being paid to the unfolding constitutional drama, also connected with his inauthentic personal history, even though it clearly represents a potentially fatal crisis for the regime of constitutional, democratic self-government that has heretofore determined the government of the United States.
Until now, the government of the United States has been a constitutional republic based on the sovereignty of the people. The Constitution of the United States, as the ultimate and permanent expression of that sovereignty, has been respected as the Supreme Law of the Land. Some people, myself included, would certainly argue that in some matters this respect has been a merely formal camouflage for actions and decisions that contradict, embroider or simply ignore the plain text of the Constitution, but until now this has been done with arguments (however groundless and illogical) that formally preserve its authority.
Now a question has arisen with respect to what may be in a practical sense the most critical allocation of power in the Constitution, that of the president of the United States. Though by election that power is in the gift of the American people, the Constitution clearly imposes two restrictions or conditions upon it. It cannot be extended to someone under 35 years of age. It cannot be given to anyone who is not a natural born citizen of the United States.
Evidence has emerged, including recorded statements by his Kenyan grandmother, that raise doubts as to whether Barack Obama is in fact a natural born U.S. citizen, eligible to be president. Whatever the facts are, there can be no doubt of the constitutional requirement, and no doubt that a conscious decision to ignore it involves open and destructive disregard for the Constitution's authority. If Obama is accepted as president of the United States in a context that sets aside the Constitution of the United States, by what authority will he govern?
Relying on the results of the recent election, some will say "by the authority of the people," which is to say the majority of the people which elected him. But until now, the United States has not been simply a democratic republic (that is, a regime in which the sovereign power follows the will of the simple majority) but a constitutional democratic republic (in which the sovereign power follows the will of the constitutional majority, and is bound by the terms and conditions specified in the Constitution.) The best illustration of the difference may be taken from the very history Obama's election is supposed to culminate – the history of black Americans. In 1954, when the Supreme Court announced its opinion in the famous Brown v. Board desegregation case, the simple majority of the American people had repeatedly and continuously accepted or tolerated segregation, both in their election of representatives and in the legislation passed by those representatives. The Court held segregation to be contrary to the Constitution (the Supreme Law of the Land) and therefore unlawful. Its authority to do so rests on the clear logic of judicial review succinctly articulated by Alexander Hamilton in the Federalist Papers:
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both: and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decision by the fundamental laws, rather than by those which are not fundamental. (Federalist 78)
Though the results of any given election also represent the will of the people, the validity of those results rests on the substantive and procedural understanding arrived at by the people and expressed in the provisions of the constitutional compact. In it, the people have agreed that, first in its adoption and then in the adoption of any changes in its terms, a more comprehensive majority is required than that which decides the outcome of any other election prescribed by it. The need for this more comprehensive majority makes the Constitution a more permanent and durable expression of the will of the people than any subsequent action by a simple majority. In this context, those who compose the simple majority are, like the members of the legislature, subordinate agents of the constitutional majority.
Almost all the great advances of the civil rights cause in the 20th century depended upon this argument as to the authority of the Constitution. The concept of constitutional review has also been crucial in the protection of individual rights, including the property rights of those who might otherwise be despoiled by intemperate majorities, roused to injustice by ambitious demagogues.
If Barack Obama is allowed to assume the office of president without positively establishing his eligibility under the Constitution, it will set a precedent for exempting the allocation of executive power from constitutional restrictions on the pretext that majority support overrules constitutional authority, popularity supersedes the fundamental law. Obviously, this is a recipe for the establishment of democratic dictatorship, like that which characterized the revolutionary first republic in France and licensed its murderous excesses. It is the counterpart of the "democratic people's republics" in whose name countless millions were imprisoned and killed by oppressive party dictatorships in the Soviet Union, Communist China, North Korea, etc.
In an era when the insecurity implied by the threat of terrorist attack already overshadows our liberties, only one thing may be more dangerous to our freedom than such a precedent – the fact that it comes about because of the ignorance, fear, or selfish ambition of those sworn to uphold the Constitution. If they lack the character to do so now, before abuses of executive power create an environment of physical fear and intimidation, what must we expect once those abuses produce their inevitable effect? The people mesmerized by his tinsel rhetoric may expect Obama to resist the temptations of demagogic tyranny, but if he assumes office knowing that in doing so he has already successfully set aside the Constitution, no reasonable person could agree with them. As Shakespeare wrote, "Things bad begun make strong themselves by ill." ("Macbeth," Act 3, Scene 2)
Since every government official in the United States is sworn to uphold the Constitution, all of them, at every level, have a positive obligation to make sure its provisions are implemented. With regard to the issue of Obama's eligibility to serve as president, a special responsibility falls upon the Supreme Court of the United States. Though in the end, the actual implementation of the Constitution must at this stage be left to the members of the Electoral College (who will also be bound by oath to respect the Constitution), the Supreme Court has the duty that falls to the judiciary in every case, to make sure the provisions of the law are clearly understood, and that relevant facts are presented and have not been falsified or fraudulently withheld. Since the case involves a general election, in which millions of citizens participated, prudence dictates that this be done in a way that assures those millions that the law has been respected, which means that relevant facts and evidence must be publicly presented to the fullest extent possible.
A failure of statesmanship in this matter could obviously have the gravest consequences. It would be inexcusable dereliction to permit a situation in which the putative authority of a sitting president is plainly contradicted by the authority of the Constitution from which the whole government derives its legitimacy. Citizens, sworn officials of government at every level, members of the military – all would be put in a position where their sworn duty to the Constitution is in opposition to their inclination to respect the decisions and actions of the president of the United States. Both intellect and conscience recoil at the prospect of such conflicting claims. I pray that the justices of the Supreme Court, and other officials sworn to uphold the Constitution, will do and be seen to do their duty. Otherwise Obama's vaunted promise of change will portend the demise of America's peaceful liberty.