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FDR's 'rewriting' of the Constitution
Posted By Benjamin Shapiro On 10/03/2007 @ 1:00 am In Commentary | Comments Disabled
“The failure of the nation to update the Constitution and the structure of government it originally bequeathed to us is at the root of our current political dysfunction,” writes Dr. Larry Sabato, founder and director of the University of Virginia Center for Politics, in his cogent and fascinating new book, “A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country.”
Few would dispute that American politics is in disarray. Our national politicians spend like drunken sailors on shore leave while uttering high-flown rhetorical platitudes that would make conmen blush. Our local, state and federal government seems riddled with corruption. The judiciary dictates policy while the legislature abdicates.
“Our forefathers designed the best possible system that could be achieved at that moment in time,” says Sabato. Nonetheless, Sabato argues, America has reached a different moment in time, and our Constitution has not caught up.
To that end, Sabato proposes 23 amendments to the Constitution, ranging from the structural (expanding the Senate to 136 members by making membership more proportional to state population) to the political (adopt a balanced budget amendment) to the idealistic (obligate all able-bodied young Americans to do at least two years of national service). Many of Sabato’s proposed amendments are worth supporting – an amendment introducing a line-item veto for the president would allow the executive to cut legislative pork, for example.
But Sabato’s book raises a larger question: Should our Constitution be amended whenever we encounter systemic difficulties with the administration of our government?
Sabato avers that the Founding Fathers embraced the idea of periodic constitutional amendments; they saw that successful government would require tinkering. Thomas Jefferson suggested that the Constitution be updated every generation.
But the Founders’ approval for future amendments was more than mere acceptance of change – it was a call to accountability. Written amendments, the Founders knew, would be put to the same scrutiny as typical legislation. Instead of reading governmental change into the text of the Constitution, governmental change would be explicit – and therefore, easier to identify as departure from the original constitutional structure.
Unfortunately, modern politicians have ignored the Founders’ call. Instead of explicitly amending the Constitution, presidents, judges and legislators alike have silently rewritten it. They have “discovered” their own ideas about government in the text of the Constitution. And they have not been held accountable.
Take the issue of federal spending, for example. During FDR’s presidency, the federal government grew exponentially in size. The federal government usurped traditional state power; it regulated minute details of Americans’ everyday lives. The American governmental structure changed fundamentally – yet no constitutional amendment justified that change. Instead, FDR claimed authority in the original text of the Constitution. The American people never had to face the fact that by approving FDR’s program, they were altering the Constitution. FDR never had to face the political fallout of altering the Constitution.
Whether or not Americans acknowledged FDR’s change, however, the change occurred. The constitutional structure fell out of kilter; federal power overrode state power, removing one of the key checks and balances designed to satisfy local communities and prevent federal dominance.
Would FDR’s program have passed if he had proposed a constitutional amendment? Perhaps. But at least Americans would have recognized the sea change they were approving. Such recognition provides accountability – it requires politicians to justify changing the greatest founding text ever written.
Whether or not Dr. Sabato’s proposed amendments solve the problems of governance, his call for a new Constitutional Convention is an important one. To solve the problems of governance, we must stop pretending that the Constitution is all things to all people – we must decide whether it ought to be challenged, and if so, where. The Founding Fathers would expect any proposed major governmental change to face up to the historic challenge.
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