Gordon L. Weil
Before the return of Donald Trump to the White House, I
wrote a series of columns entitled “Fix It.”
They suggested ways of repairing the damage to historic practices that
had their origins in the Constitution Framers’ shared understandings about the
government they were creating.
I avoided proposing formal constitutional amendments, sharing
a widely held concern that the process, especially a national convention, would
expose the founding document to radical change.
They could modify or remove some of the constraints on government and endanger
the Bill of Rights.
Without a formal amendment process, much of this has happened
in a single year of Trump’s second term.
Widely accepted understandings about constitutional limits, guiding all
branches of the federal government, were summarily swept away.
The political world has drastically changed since 1787, when
the Constitution was drafted. While its
terms were sufficiently general to allow adaptation over time, they have also permitted
significant departures from their intent and subsequent practice. Key elements of the constitutional system
have crashed.
The central innovation of American government was checks and
balances. Emerging from the arbitrary rule
of the British king and his compliant parliament, the Framers designed a system
that denied power to any one person, but distributed it over three independent
and interlocking branches.
Each would be subject to checks by the others and power would
be balanced among them. National policy
would be embodied in laws passed by Congress.
The president would execute the laws, exercising discretion only within prescribed
limits. The Supreme Court would ensure
that the other branches respected their legal limits, including those set in
the Constitution.
The Framers assumed that each branch would accept checks and
balances. The three institutions would each
receive more loyalty than that accorded to political “factions.” The interests of individual states would be
respected. Political perspectives might shift over time to
reflect the popular will, but only gradually.
The American government began abandoning that model after
the 1994 congressional elections, as I have previously noted. The Republican Party initiated discipline
closer to the British parliamentary tradition than the Framers’ plan.
Republican discipline reached its ultimate point in 2025,
with the Republican president using unlimited powers affirmed by the Supreme
Court dominated by his followers and enjoying his party’s virtually absolute
congressional support. Checks and balances,
the unique American system, was abandoned, perhaps forever.
Commenting on the system now imposed on the country, a federal
judge recently
found the focus: “The Founders designed our government to be a system of
checks and balances. Defendants [the Trump administration], however, make clear
that the only check they want is a blank one.”
Impeachment may be the only constitutional check apparently
still available under the disrupted balance of power. Trump worries that a Democratic House
majority could vote his third impeachment.
But the chances for conviction by the Senate are virtually nonexistent.
If the historic system is to be restored, the Constitution
must be rescued. Key changes can be
made without amendments. But, because we
have seen constitutional provisions ignored by a willful regime, stronger protective
barriers must be formally erected. This might
create a new originalism, though not the usual cynical distortion of original
intent by obvious partisans.
Candidates should seek federal office on explicit platforms to
restore checks and balances. Unless
there is greater independent, nonpartisan leadership by federal politicians on
these central concerns, the changes of 2025 will have turned the United States
away from limited government to authoritarian rule.
The calendar must be the tool of limited government. The Constitution should require that every
law must have a sunset, requiring readoption after a designated period. No longer would a president be able to misuse
outdated laws for unintended purposes.
Similarly, public control of government would be enhanced by
the imposition of term limits. “Power tends
to corrupt and absolute power corrupts absolutely.” Without term limits, members of the House and
Senate, and judges come to exercise absolute power. Their focus changes from pursuing the public
good to enjoying the intoxication of unfettered rule.
The unelected Supreme Court should retain its independence,
but no longer should a five-person majority impose its interpretations on a
nation of more the 330 million people.
Rulings on constitutionality should be reversible by Congress.
The Court’s misguided determination that unlimited campaign
spending is free speech should be constitutionally quashed. Congressional redistricting, which today
makes a mockery of democracy, should be returned to the original intent,
linking it to the census every ten years.
A president and Congress could achieve some of these goals,
but legislative change might prove to be temporary. The country could experience the federal
government reversing itself in arbitrary and unpredictable ways after each election.
These proposals for constitutional change may seem
hopelessly idealistic, coming from “one
crying in the wilderness.” Improbable, yes, but no more than the sweeping
and unexpected constitutional change that has taken place in less than a year.
How? Now is the time for the Constitution to become an
election issue.
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