Numerous scholars over the years have attempted to argue that the Constitution is not suited for modern times (Sanford Levinson of the University of Texas is the latest) or have proposed ways to get around the Constitution through clever interpretation (Cass Sunstein).
But while I usually disagree with both their conclusions and their prescriptions, one must admit that they at least understand what the Constitution does and does not say. That seems to be a rare thing these days.
Consider just two instances of misstatements by people who are presumed to know something about the Constitution, having taken an oath to defend it.
Writing in the May 24 edition of Roll Call, Rep. Carolyn Maloney (D-N.Y.) responded to opponents of funding the American Community Survey by claiming that their opposition to the funding was not just wrong but “unconstitutional.”
In fact, she called the survey a “core constitutional mandate,” which makes one wonder what copy of the Constitution she has been reading.
What the Constitution requires is a census (in the document’s actual words, an “enumeration”) to determine how many people live in each of the states for the purpose of determining how many Carolyn Maloneys each state is entitled to in the House of Representatives.
There may be sound reasons for inquiring of those citizens such additional information as the community survey seeks, but the Constitution neither requires the collection of such data nor provides for the survey to be undertaken.
Many who help shape public laws would agree with Maloney that the information gathered is important to the designing of good national policy. But whether to amass the information is merely a matter of policy itself, over which disagreement is possible.
Failure to do that which the Constitution does not require is not, however, unconstitutional.
And yet the Congresswoman seems practically a constitutional scholar when her misstep is compared to a statement by Sen. (and former presidential candidate) John Kerry (D-Mass.) in opening a hearing on the Law of the Sea Treaty.
For reasons unclear to me (he was off on a bit of a tangent), the Senator noted that even though the Constitution does not provide for a presidential veto, we nonetheless accept it — which is very magnanimous of us.
Although our open-mindedness in allowing the president to get away with such things might not seem so big-hearted if the Constitution actually does give the executive this rather important grant of authority.
And, voila, there it is. Article 1, Section 7. The president, it seems, is granted the right to send legislation back to the Hill without his approval, and if quite substantial majorities do not reprise the initial decision to approve, said legislation does not become law.
Perhaps the Senator simply ran a word search and not finding the word “veto” in the document failed to examine whether the vetoing power might have been spelled out with alternative language. Too much Google, perhaps, and not enough civics. Sadly, actually knowing what the Constitution says is becoming an ever-rarer phenomenon. I first noticed this strange lapse a couple of years ago when a prominent historian told a large audience in Aspen that our system of government differs from that of Great Britain because in Britain the head of state and the head of government are positions held by separate individuals whereas in the United States, one person holds both.
I naturally wondered who that one person is.
The president is the head of state (the official representative of the United States to other governments of the world), but unlike Britain, where the powers of the executive and legislative branches are commingled and the prime minister wears both hats, here the powers are divided and most of the major ones (spending, taxing, approving treaties and judges, creating or ending public programs, etc.) are in the legislature.
The president has the greatest platform for the exercise of leadership, but he heads nothing other than his one branch of government that is entirely dependent on the will of Congress for both law and money.
Some scholars have proposed a stronger executive, one who would be more like a head of government, but that is not the case today, and it is no longer surprising to me that even a noted historian would have such an inadequate understanding of the constitutional system.
So while I initially recoil at misstatements — and misunderstandings — such as the ones by Maloney and Kerry, I now simply roll my eyes and wonder, as former Supreme Court Justice Sandra Day O’Connor so often does, when we will again concern ourselves with teaching what we used to call “social studies.” A little less emphasis on “social” and a little more on “studies” would seem to be in order.
Former Rep. Mickey Edwards (R-Okla.) served in the House of Representatives from 1977 to 1993. He is on the board of directors of the Constitution Project.