The Constitution is back in vogue. Well, not quite: I’m not sure that constitutional interpretation will ever be considered sexy. It is, however, enjoying a resurgence of meaningful discussion; something that hasn’t happened in quite a while.
A good deal of this conversation is motivated by the perception the U.S. is growing increasingly ungovernable. An article in The New York Times recently described our political system as one that has rarely “seemed more polarized and less able to solve big problems.”
Essentially it’s not looking good for American politics. Perhaps substantial change is needed: Is it time to see if we need to reorganize parts of our political system? Given all this, perhaps the next time you and your friends are sitting around discussing the nature of American constitutional politics-this is Northwestern; I know it happens-consider the following proposals.
For starters there’s a flurry of recommendations regarding Article I of the Constitution (I’m sure I don’t need to remind anyone that’s the section on Congress). One area that stands out takes issue with the Commerce Clause, which states that Congress has the power to pass laws concerning commerce between the states. From this rather humble allowance, Congress has metastasized its power into areas that seem rather distant from interstate commerce: How, for instance, does the Commerce Clause really give Congress the power to pass anti-discrimination laws?
Given the nature of today’s economy, it’s impossible to really support a federal government that isn’t deeply involved in the economy and, really, society at large. Yet today’s Congress is hindered by the requirement that any piece of legislation must show some relationship to interstate commerce. And this requirement has consequences.
Bill Clinton’s Violence Against Women Act was passed in the early 1990’s as a way of providing federal penalties against domestic abuse. Despite VAWA’s admirable intentions, the legislation faced a number of constitutional challenges in its infancy. In 2000 a huge component was essentially gutted by the Supreme Court. Women are no longer able to sue their rapists in federal court because the legislation doesn’t have a strong enough relationship with interstate commerce. This non-sequitur of a requirement needs to be changed.
(An aside: As a result of the Supreme Court’s VAWA verdict, two men who were almost certainly responsible for the vicious multiple rapes of a woman were able to walk free. Constitutional politics, while perhaps not the most glamorous of subjects, certainly has its consequences).
And what of the Senate? The Senate, as of now, is governed by a hodgepodge of customs and traditions only partially encoded into law. The arcane nature of Senate proceedings essentially turned the Democratic majority into an instrument for Joe Lieberman’s whims and wishes (He’s for Medicare expansion! Against it!). At the least, this suggests Congressional proceedings should have some structure imposed upon them by Constitutional stricture.
I would love to see an amendment regulating the use of the filibuster. In the past 10 years, two healthcare reform attempts have been effectively obliterated by dedicated use of the filibuster. Bill Frist almost killed the filibuster with his nuclear option. Its use has become more frequent, its effect more toxic. The filibuster needs to be reigned in. The fact is neither of these proposals are necessarily red or blue in nature. There should be a universal desire to ensure our country is governable. Civility is preferable to partisanship, regardless of what side of the aisle you sit.
And just the opposite has been true lately: The words “ungovernable,” “broken” and “gridlocked” have been increasingly popular ways to describe the nature of Washington, D.C. lately. Discussions about and hopefully action on constitutional activism might be the way out of what is an increasingly apparent faltering system.
