While our nation's founding fathers were imperfect beings and left much to be desired, they anticipated our contemporary constitutional crisis. Nearly 250 years before our politicians began trading “essential liberty to obtain a little temporary safety,” the founders did their best to prevent future crises from destroying the republic they created. But in the decade since the 9/11 attacks, our political leaders have done precisely that, leaving the contemporary United States a pale shadow of the “land of the free” we continue to hail at baseball games.
It is the sub par work of our current leaders – including Presidents Bush and Obama, the justices of the Supreme Court and Congressional leaders from both major parties – that has unraveled our constitutional fabric before our eyes. But it is we, the people, who have allowed fear to drive our political decisions. As the checks and balances between our divided powers have eroded, the executive branch continues to grow more powerful, regardless of who holds the White House.
In the “Federalist No. 10,” James Madison explains the diffusion of power across multiple institutions to enable checks and balances among them. His theory was that a democratic republic cannot legitimately suppress political differences, but can at least prevent them from undermining the system by encouraging enough “factions” that no one could dominate. Madison envisioned political factions as crabs in a bucket, dragging each other down before one could oppress the rest.
But checks and balances routinely fail today.
Courts defer to executive claims that old news already reported by journalists could undermine national security if discussed in a court. Congress has not only abdicated its oversight responsibilities by passively failing to check executive power, but actively reinforces it at nearly every turn. And where local jurisdictions have tried to protect the civil rights of their residents from a long-secret FBI scheme to create a national biometric ID system, the federal juggernaut has rolled on, dividing and conquering a confused public by vilifying vulnerable communities (in this case, undocumented immigrants).
Among the federal and state executives, legislatures and judiciaries and the executives and legislatures of local municipal entities, there are at least eight branches of government that govern the lives of any given American. Yet, just two political parties hold (for all intents and purposes) a duopoly on the thousands of offices across those eight branches.
How are branches of the federal, state and local governments supposed to check each other when many are composed of individuals who share the same political allegiances? Few admissions reflect greater fecklessness than hearing Democratic members of Congress repeatedly decline to reintroduce civil rights legislation they have long supported, simply because the Obama White House opposes it. And fewer judicial decisions reek of corruption more than the ruling by Supreme Court justices appointed by Republicans – who were responsible for placing the Bush administration in office in the first place – insulating Cheney's energy task force from statutorily required disclosures that could have stopped the disastrous war in Iraq.
Congress holds a constitutional responsibility to check and balance the executive branch. But rather than use its oversight tools to correct overzealous policies, Congress has reinforced executive abuses at nearly every turn.
Bipartisan Congressional votes amid little debate hid evidence of detainee abuse in fall 2009, authorized dragnet domestic surveillance by the National Security Agency in 2008, entrenched the FBI leadership in summer 2011 and reauthorized the Patriot Act three times over the past two years despite a rising tide of civil rights violations. Even where courts have been outspoken – for instance, defending the rights of detainees jailed without trial – Congress has gone out of its way to statutorily reinforce a regime of arbitrary detention incompatible with the nearly thousand-year history of habeas corpus.
Instead of independent institutions exercising their checks and balances, our government is composed of parties combining forces across those institutions to block those checks and balances. And while our leaders have paved the way for today's constitutional crisis by endorsing executive privilege and power, we, the people, have fallen asleep at the wheel by accepting the corruption that now passes for business as usual. The legacy of 9/11 is far more terrifying than terrorism: it is the perversion – in only ten short years – of a 200-year-old republic once hailed as “the land of the free.”