Two Cheers for Constitution Day!

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tags: Constitution



F. H. Buckley is a Foundation Professor at George Mason Law School and the author of The Once and Future King: The Rise of Crown Government in America

Two hundred and twenty-seven years ago the Framers devised the wisest constitution then known to man. That was on September 3, 1787. Unfortunately, they then began to tamper with it, and the document they signed two weeks later has given us the maladies that now beset us.


What was the difference between the two constitutions? On September 3 the delegates had arrived at what they thought were two settled principles. The first was that Congress should appoint the president. Over the prior three and a half months, they had voted six times for a congressionally appointed president. At no time did they vote for a popularly elected president. The second principle was that the president might be removed by a simple majority vote in the Senate, after impeachment in the House. The senators, moreover, might do so whenever they thought the president was failing on the job and guilty of “maladministration.”


What would that have looked like, in practice? First, we wouldn’t have the gridlock that today paralyzes Washington. A president chosen by Congress would be far more likely to agree with it, especially if he could so easily be removed. We wouldn’t have our current regime, where presidents are reliably Democratic and Congress is reliably Republican, and the two are scarcely on speaking terms with each other.


I think we’d also see less extremism and more movement toward the political center. Were all sides to talk to one another, they’d find more common ground on which to agree. There would be less tub-thumping from people pushing ideas they knew would never go anywhere.
Finally, the September 3 constitution would rein in what many see as dangerously excessive executive powers. Given today’s gridlock, the president asserts that if he wishes to achieve anything, he has no choice but to legislate from the White House. And so we now expect to see a presidential amnesty for millions of undocumented aliens after the November election. That’s not in line with what the Framers envisioned, of course. They thought that Congress should do the legislating — that it would be something more than the venue for State of the Union addresses. Reining in the executive would be far easier under the September 3 constitution.


The September 17 constitution, by contrast, makes it virtually impossible to remove a president. To do so, you’d need a president from one party, the House of Representatives and two-thirds of the Senate in the hands of the other party, and misbehavior that, in Congress’s view, rose to the level of “high crimes and misdemeanors.” ...




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