Fraying contracts

Dear Readers, Our state and federal Constitutions are social contracts between our government and us.  We imbue the state with sovereignty, the lifeblood of our collective existence, in exchange for rules and limitations.

Our Constitutions are intentionally difficult to alter.  This contrasts with what happens in other countries. 

Victor Orban’s Hungary was methodically made illiberal.  The improbable election of Petr Magyar was against the headwinds of not being able to advertise and a rigged election process weighted to perpetuate Orban’s party’s power in its Parliament.  It remains to be seen if Magyar will dismantle the constitutional anti-democratic measures Orban pushed into law.

Vladimir Putin and Xi Jinping changed their countries’ (Russia and China, respectively) Constitutions to perpetuate their rule.  

Putin manipulated the reins of power by serving two (2) terms, stepping aside for Dmitry Medvedev’s Shadow Presidency (while Putin was Prime Minister), only to run and win the Presidency again.  After this“okey-doke” sleight of hand, Putin had the Russian Constitution rewritten (roughly 60%) in 2020.  Now, his latest term in office is not up until 2036; he is effectively a President-for-life.

Something similar is true for Xi Jinping.  As with Putin, he was term-limited until a Constitutional Amendment in 2018 opened the door for him to remain in power indefinitely.

Our Constitution is less malleable.  The built-in safeguards of typically requiring super-majorities (two-thirds) of both houses of Congress, national or state conventions approved by two-thirds or three-fourths of the state legislatures, means we have only had 17 Amendments to our Constitution (after the first 10 ten, which we know as the Bill of Rights).  

Three of them (14^th, 15^th, and 16^th) were passed because of the Civil War, correcting the stain of racism in the Constitution.  Unfortunately, they could not wipe racism from the minds and hearts of some of our citizens and culture.

In our case, two of them are the 22^nd and 25^th Amendments, which deal with rules for the President.  

The 22^nd Amendment was ratified in 1951, in the wake of Franklin Delano Roosevelt being elected to four successive terms and capping at 10-years the maximum time served by a Vice-President succeeding a President.

The 25^th Amendment was ratified in 1967 as a sensible prescription to ward off unexpected disaster, after John F. Kennedy’s assassination and Dwight D. Eisenhower’s brushes with medical emergencies.  It allows for temporary transfer of presidential powers, succession rules, as well as contingencies if a President is incapacitated.

We distribute our sovereignty amongst three branches, each having distinct powers.  The machinery of our government creaks when each of them fails to jealously guard their zone of influence.

Congress is a body created by the first Article of the Constitution.  It was envisioned as the preeminent branch with legislative powers and responsibilities.  Since Watergate and the reforms passed to rein in the Presidency, it has become increasingly irrelevant, as it is torn by hyper-partisanship.

Successive Presidents have used a stalemated Congress as an opportunity to seize power.  President Trump, especially, has capitalized on a compliant Supreme Court expanding his authority.

This is undemocratic and a breach of the contract we formed with ourselves.  The remedy is for Congress to step up and overrule the other branches, to pass legislation disapproving of presidential actions and Supreme Court legal interpretations.  As much as we are a country of laws and allow courts to referee legal complexities, we rely on Congress to make and clarify the meaning of laws.

Take the Voting Rights Act.  Justice Alito declared us a country bereft of racism and tacitly approved partisan gerrymandering, even if this robs minorities of political representation.  This is the Supreme Court’s interpretation of the state and mood of the country.

Congress has the right to enact a different result.  It can pass a law outlawing partisan gerrymandering as anti-democratic.  It can require that political districts be reasonably compact.  It can require that the drawing of maps by non-partisan experts, bleeding politics from this process, as is required in several “Blue” states, such as Florida and Utah.  It can even pass a law expanding its own size, thereby bringing representation closer to the people.

The contract is fraying.  We made 18^th-century promises to ourselves at our Constitutional Convention.  Maybe it is time to renew that contract to reaffirm our commitment to democracy and fairness.  If we do not, the lessons of the frailties of a House Divided against itself may be forgotten.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.