... our U.S. Constitution articulates a certain vision of how our country should be run: the rule of law, separation of branches of government, limits on government powers, and the importance of individual rights like freedom of speech and religion.
Teaching Constitutional Law for over 25 years can be hazardous to your (mental) health. The reason is that our U.S. Constitution articulates a certain vision of how our country should be run: the rule of law, separation of branches of government, limits on government powers, and the importance of individual rights like freedom of speech and religion, all of which our founders and framers thought would ensure a unified nation in the midst of racial, ethnic and religious diversity, "e pluribus unum." That, at any rate, is the theory. The actual practice can be quite another thing.
We know, for instance, that the Constitution did not prevent the national nightmare of the Civil War over slavery and states' rights 150 years ago, nor the social turmoil over the Civil Rights movement 50 years ago, which finally sought to vindicate the guarantees of the post-Civil War amendments to the Constitution of freedom and civil equality, including voting rights, for blacks.
Nor did it prevent the internment of Japanese-Americans during the Second World War, nor the slaughter of millions of unborn children under Roe v. Wade and Planned Parenthood v. Casey. For every constitutional success like Brown v. Board of Education that ended segregation in the public schools, there's a constitutional disaster like Dred Scott that helped bring on the Civil War.
Congress is supposed to legislate, and the president is supposed to see that the laws be faithfully executed. Lately, however, Congress has been unable or unwilling to legislate on socially divisive subjects like immigration reform, and the president has been all too willing to rule by executive order and administrative regulation. And so we have the recent executive decree ordering public schools nationwide to let students use whatever bathroom they choose, male or female, according to their preferred gender identity. The legal basis for this is a highly controverted reading of the civil rights laws, which would make having to use your biologically-determined gender's bathroom a form of discrimination on the basis of sex.
I just watched HBO's movie on President Lyndon Johnson's first year in office, "All the Way," this past weekend. Yes, LBJ was the ultimate political wheeler-dealer, working hard to pass the Civil Rights Act of 1964 which outlawed discrimination on the basis of race in places of public accommodation on the basis of race. He cajoled, threatened, and horse-traded to get the votes he needed in Congress. This is the kind of work that needs to be done with Congress, in our free system of government, to get legislation passed by consensus. President Obama does not do this, and so has underlings draw up executive orders, to legislate by decree. The social division just increases.
Another recent example is the HHS contraceptive mandate, with its ungenerous accommodation for religious freedom for religious organizations like the Little Sisters of the Poor. Just recently, the Supreme Court returned these cases by unanimous vote to the lower courts, asking them to explore the possibilities of compromise while vacating the lower court decisions against the religious parties, noting that the government fines were inappropriate. Once again, unilateral executive action by the Obama administration was deemed problematic.
While this is a healthy reminder that our government is supposed to be a government of laws and not of personalities, the pending presidential campaign does not give much prospect of relief in the coming president. Both parties are fiercely divided over their leading candidates, who have very high negative ratings from the public. They seem entrenched in ideology, with little of the political skills of negotiation and give-and-take that have characterized our most successful presidents and our constitutional system at its best.
While it is salutary as Christians to be reminded that our salvation ultimately does not come from politicians, it is still important to recognize that politics is an important and necessary way of serving the common good. Our present outlook and choices seem all-too grim.
Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.
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