Exclusive: McClintock-The Great Question: Will Our Constitution Stand?

Last week the House Judiciary Committee raised the overarching question of our generation: will the American Constitution stand?

All the laws passed under that Constitution have well-developed and well-armed agencies to enforce them, but the Constitution itself has no such protections. It was designed to be internally self-enforcing, with the powers of government clearly divided among three separate and equal branches, each checking the others.

But this self-enforcement mechanism can only work when the powers are clearly delineated and evenly divided; when the officials who exercise those powers are devoted to the Constitution; and when the people insist on the fidelity of those officials to it.

This is the great question for which our generation is deeply answerable.

The Constitution makes it very clear that only Congress may make laws. The principal responsibility of the executive is to take care that those laws be faithfully executed. Yet this President has increasingly asserted sweeping powers to unilaterally nullify laws that he dislikes, to pick and choose who must obey the law and who need not, and even to impose entirely new laws that Congress has explicitly refused to enact.

James Madison, the father of the Constitution, said that its single most important feature was giving the legislative and not the executive branch the decision of war and peace. Yet this President asserts the authority to attack other nations without Congressional authorization.

The Bill of Rights protects all Americans from retribution for expressing their political beliefs; it protects a free press from intimidation; it protects the free and open expression of religious beliefs; it protects individuals from having their records searched or their property seized without due process of law. And yet, these fundamental rights have been made a mockery by the agents of this administration, from the IRS to the Justice Department to the NSA. 

These trends may have predated the current administration, but under this President they are approaching the dimensions of a constitutional crisis.

The justification, of course, is the common good, whether conducting warrantless searches in the name of security or ad hoc changes in Obamacare in the name of, well, Obamacare. But the Constitution protects something far more important: the rule of law, which is what divides democracy from despotism.

Ours wouldn’t be the first civilization to succumb to the siren song of a benevolent and all-powerful government. But every society that has fallen for this lie has awakened one morning to discover that the benevolence is gone and the all-powerful government is still there.

For 225 years, the Constitution has protected us from that fate and, in turn, has been the fountain of American prosperity, happiness, strength and exceptionalism. As the structure of the Constitution is allowed to decay, so too have the blessings it once bestowed upon the nation.

The form is still there–the institutions continue to function–but they no longer serve their principal role to protect the rule of law and the liberty of the people. 

The fate of the world’s first republic should be a warning to its greatest Republic. The Roman senate survived its fall for another 400 years, but its nature and purpose had been lost.  

Surveying the wreckage of Rome, Edward Gibbon noted that “the principles of a free constitution are irrevocably lost, when the legislative power is dominated by the executive.” 

That is precisely what is happening today. 

The institutions of our American Republic continue to operate, but the structures within it are rapidly degrading. In this condition, our Constitution is becoming like a rotting porch: we can still discern its form and purpose, but the structure that gave it strength and support is hollowing out through years of abuse and neglect. 

The House Judiciary Committee hearing last week was the first step by the Congress to assess the harm already done and to begin reversing that damage before it is too late. But in its current, divided condition, Congress cannot do so alone. Ultimately, it will require the active assistance of the rightful owners of the Constitution, the American people. 

How ironic it would be if the liberties of this nation, heroically defended by the sacrifices of nine generations of Americans on far-off battlefields, might someday be carelessly thrown away here at home.

Let that not be the said of our age. Let it be said instead that just when the Constitution seemed most in peril, this generation rediscovered its virtue, rose up at the ballot box to rescue and defend it, passing it on restored and revitalized for the many generations who followed.