Today is Monday, May 14. In 1787, also on Monday, May 14th, in Philadelphia, the Constitutional Convention held its opening session.
Now, two hundred and twenty five years later, we are engaged in a great presidential campaign that, at its most essential level, is about the future of the governmental system the delegates to that convention wrought. For in the last four years we have seen challenges to the long accepted meaning of many of the features and guarantees of the Philadelphia constitution.
In no particular order, here are examples:
The manner of recent presidential appointments including to the National Labor Relations Board challenged widely shared understandings about the constitutionally mandated advice and consent role of the Senate.
The expansive and aggressive use of regulation – for example, EPA’s moves to reclassify CO2 as a pollutant because of its supposed impact on climate after Congress had repeatedly rejected similar proposals – has challenged the line between legislative and executive powers.
By overriding bondholders, this administration’s federal auto bailout arguably challenged long understood constitutional limits to taking property without due process and upset the constitutionally mandated uniform rules of bankruptcy.
By requiring Catholic and other religiously affiliated institutions to provide health coverage that violated basic denominational beliefs, federal Obamacare challenged the widely understood standards of religious liberty.
In this year’s state of the union address, the president suggested that during a second term he would compel states to accept his spending priorities as their own, anticipating a challenge to the constitutional concept of federalism, as long understood.
As former White House counsel Boyden Gray has pointed out, the framing of the Dodd-Frank financial regulation bill that the administration championed so vigorously challenges fundamental constitutional rules regarding judicial review.
As Supreme Court Justice Anthony Kennedy suggested in the recent high court hearings on the administration’s signature health care legislation, the central feature of Obamacare challenges the long-established relationship between the government and the citizen, in other words, basic constitutional understandings of liberty.
Reading the record of the Philadelphia deliberations, you can’t help but be struck at how seriously the Framers took the purposes detailed in the Constitution’s preamble: “form a more perfect union… establish justice… insure domestic tranquility… provide for the common defense… promote the general welfare… secure the blessings of liberty.” These terms come up repeatedly in their debates as failures of government under the Articles of Confederation and as the goals for their project.
Would they have said that the Fast and Furious program is an example of establishing justice?
Would they have agreed that radically downsizing the Navy provides for the common defense?
Is a reelection campaign designed to stoke animosity between economic and social groups consistent with insuring domestic tranquility?
Most of all, perhaps, when our senior military officer names the national debt our biggest national security challenge… when bond rating agencies downgrade the country’s credit standing… when major federal trust funds are careening toward bankruptcy… when general fund deficits and debt are projected permanently to top levels previously seen only in the single most expensive year of World War II, thanks to spending beyond levels we have ever seen, at least in peacetime… is utterly refusing to address any element of this spending crisis an example of providing for the common defense, promoting the general welfare or securing the blessings of liberty for ourselves and our posterity?
These are not just my questions. In calls around the country over the last few weeks, I have repeatedly heard anxiety expressed about the future of America’s fundamental institutions: the open economy, the family, religious liberty, as well as the Constitution.
Yes, anemic economic growth and the lack of job creation are major worries, too. Many ask, how could the administration have spent so much money for, we were told, stimulating the economy and got so little for it?
Granting all that, still I wonder, is it too much to say that this election is shaping up into a new Constitutional Convention, in which we the people will decide the character of our country for generations to come?