The bigger problem, as Sebastian pointed out, is the erosion without consequences. In general the only way this problem can be fixed is for there to be consequences other than voter wrath. There needs to be fines and/or jail time for those that violate our rights and some body, such as the courts but perhaps not, that is specifically tasked with doing nothing but striking down laws that exceed the constitutional authority given to the legislature and/or executive branch.
I’ve heard it proposed that we should pass a constitutional amendment that creates a House of Repeal. Essentially a body who’s only job is to repeal bad laws. I’m intrigued by this idea because it provides the right kind of incentive. The great thing about our political system, in historical context, is that we are a nation of laws, rather than of men. The great problem that creates, perhaps not fully envisioned by the founders, is the same as when the only tool available to a carpenter is a hammer; suddenly everything starts looking like a nail. In an ideal world, a House of Repeal would be unnecessary if the Courts were willing to do their jobs. Having sacrificed that responsibility on the altar of the presumption of constitutionality a number of years ago, I’m not sure the Courts are any longer enough.
But would a House of Repeal really help? I’ve also wondered, rather than a House of Repeal, if it would be better to have two Supreme Courts: one Supreme Judicial Court, and one Supreme Constitutional Court, with the Supreme Constitutional Court having jurisdiction only over constitutional matters. In a departure from traditional common law, the SCC would have the ability to review legislation without the need for citizens to bring suit, or to have standing to sue. In essence, all three branches of government would have to agree on the constitutionality of a law for it to be in full effect.
As for consequences for bad behavior, I agree with Joe on that as well. I’ve pondered the utility of a provision that states if an Act of Congress is found to be unconstitutional, anyone sitting in the Congress, having voted in the affirmative for said Act, is permanently ineligible from sitting in Congress for another term. How’s that for term limits? The threat of jail time doesn’t seem to put many elected officials off from current examples of malfeasance, but every office holder out there is scared to death of losing their seat, ending up out of power and irrelevant. This kind of consequence would both provide punishment, and remove the possibility of further damage.
Another possible path to get out of the mess we are in is for the Federal government to go bankrupt and collapse sort of like the USSR did and we end up with only state governments. Many of those state governments would provide a much more free environment than that currently imposed by the Feds.
For a lot of reasons, I think this would be disastrous, chief among the reasons being that we’re sitting on some highly valuable real-estate that other powers would very much like to have. We’re a lot weaker divided. New York City wouldn’t stay free for long without southern country boys willing to defend it with their lives, and southern country boys would find it difficult to maintain 21st Century standards of living without the financial services provided by New Yorkers. Both would starve to death without midwestern farmers, and the midwest is awfully cold in the winter without coal from the West, and oil from Alaska and Texas. That’s not even mentioning monetary issues, like who can issue currency, who is responsible for the debt of the Untied States, etc. Businesses would be petrified while the political system worked out the separation of states. This would mean economic ruin, or economic ruin would already have needed to happen.Â It would be less of a disaster, in this case, to have another constitutional convention, and amend the constitution to place more firm and unambiguous limitations on federal power.
Joe also suggests that maybe we just need to go elsewhere. There are theories out there that postulate that the option of exit is one major factor that kept our early governments relatively small. Given that we’ve hit ocean, it’s no longer an option. Perhaps people need that option in order not to have their productivity preyed on by others. I don’t have any solutions for that problem.
I don’t think our founders got everything right. Their system was a wonderful example of how to control a government that presided over a largely agrarian society, and with assertive and diverse state governments. That does not accurately describe our society today. I don’t think we should rule out the possibility of making amendments to the Constitution. The progressives did it when they ushered in their era in the early part of the 20th Century, which later laid the foundation for the New Deal. Those of us who wish to see a better federal system, with a more passive and less assertive central government, should not shy away from such ideas.