Illuminating – and Disturbing Talk – on Health of the Constitution

COMMENTARY The Constitution

Illuminating – and Disturbing Talk – on Health of the Constitution

Oct 2nd, 2019 2 min read
COMMENTARY BY
John Malcolm

Vice President, Institute for Constitutional Government

John is Vice President for the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies.
The discussion was civil and illuminating — and somewhat disturbing. DNY59/Getty Images

Key Takeaways

The discussion revealed just how deeply divided we are on some very fundamental issues — including impeachment and the current state of the Constitution.

Impeachment, of course, was foremost on everyone’s mind.

It was a spirited discussion that made for a fascinating, but slightly unsettling, evening.

Last week, the annual Atlantic Festival featured a discussion on “The Battle for the Constitution,” moderated by National Constitution Center President Jeffrey Rosen. Joining me on the panel were Martha Jones, a history professor at Johns Hopkins University and Quinta Jurecic, a managing editor at the legal website Lawfare.

The discussion was civil and illuminating — and somewhat disturbing.

Mr. Rosen said the panel’s charge was “to put a constitutional lens” on the questions of the day, in order to “elevate the country above some of the partisan rancor that is transfixing the nation.” At that he succeeded.

Nonetheless, the discussion also revealed, once again, just how deeply divided we are on some very fundamental issues — including impeachment and the current state of the Constitution.

Impeachment, of course, was foremost on everyone’s mind. The Constitution provides that a president, as well as other civil officers, may be impeached, and removed, for committing “treason, bribery, or other high crimes and misdemeanors.”

For Ms. Jurecic, this is a done deal. President Trump’s conduct during his call with President Zelensky of Ukraine, she stated, was “a paradigm of what we might look to as an impeachable offense.” While acknowledging that “we don’t yet have all the information,” she argued that the facts as they are presently known are sufficiently clear to establish that Mr. Trump abused his office for personal gain at the expense of the country. Further, she invoked the specter of Richard Nixon to charge that Mr. Trump had perpetrated “a gross civil liberties violation” against former Vice President Joseph R. Biden and his son, Hunter.

I agreed that a gross abuse of power might constitute an impeachable offense and that we will all learn more in the days and weeks ahead. But it is quite a stretch to say, based on the facts as we know them today, that we are anywhere near that threshold.

When asked whether we were in a time of constitutional crisis, Ms. Jurecic replied that it could more accurately be described as a time of “constitutional rot” in that our “faith in the underlying principles is gone.” Mr. Rosen noted during the discussion that the norms that once governed our politics are being undermined.

I’m not buying it.

Yes, we are a closely divided country, a state which can lead to robust and messy disputes about the proper roles of the three branches of the federal government and about the proper scope of the federal government’s power over the states and the people. But, for the most part, the rule of law has been, and continues to be, honored. The authority of the courts has been respected.

Professor Jones observed that our country’s history shows “how difficult it is to pull apart the constitutional questions from the political questions.” In her view, “the deep subtext is a question about in what direction we are headed as a nation [and] who is going to steer us in that direction.” This, she stressed, involves “not just political questions,” but “moral questions.” The answer, she implied, should be supplied by judges.

While noting that it was the courts, specifically the Supreme Court, that undermined the promise of Reconstruction, she opined that we are currently in “a sort of crisis” because the courts appear to be headed toward “if not rot, to a kind of irrelevance” in terms of deciding “the kinds of human questions that are troubling us as a nation.”

My response: Who says judges should be deciding major social issues in this country? I believe that deciding such questions should, in most instances, be left to the people and their elected representatives, not nine lawyers in robes sitting on the Supreme Court.

It was a spirited discussion that made for a fascinating, but slightly unsettling, evening. In a 1936 speech, Sir Austen Chamberlain cited an ancient Chinese curse (although he may have made it up): “May you live in interesting times.” We certainly do.

This piece originally appeared in The Washington Times