An Arbitrary Nation: Part 7

Illustration by Jason Stout

This "Arbitrary Nation" series on the U.S. Constitution has emphasized the first 10 amendments – our Bill of Rights – because they are the most vulnerable and violated. Amendments 11 through 27, ratified between 1795 and 1992, are beyond the scope of this series and beyond the energies of this writer. So, too, are the many Supreme Court decisions that have sometimes strengthened and sometimes enfeebled our rights. (Don't even get me started on Wickard v. Filburn, 1942. Really. Don't.)

Proceeding, then, to the body of the Constitution: Its seven Articles number only about 4,000 words – or roughly three pages of the Chronicle. That small space houses the basic structure of Congress, the presidency, and the judiciary. Interestingly, more than half those 4,000 words are devoted solely to Article I, treating the forms and powers of Congress. The Framers gave Congress first importance, so, in this final installment of "An Arbitrary Nation," let's do the same.

The generation that wrote and ratified the Constitution had high hopes for Congress. New York's Noah Webster, originator of Webster's Dictionary, wrote that "[w]hile our Legislatures ... remain elective, and the rulers have the same interest in the laws, as the subjects have, the rights of the people will be perfectly secure[.]" Samuel Stillman, of Massachusetts, wrote that those elected would be "ourselves; the men of our own choice, in whom we can confide; whose interest is inseparably connected with our own."

Of course, "ourselves" meant white males who owned property; these men expected fair treatment from the white, propertied men they elected.

Even then, such faith sounded naive to tough-minded men who cherished no illusions about the fragility of their republican experiment. Virginia's James Madison predicted that unless voters of "virtue and intelligence [select] men of virtue and wisdom ... no theoretical checks, no form of government, can render us secure."

I read Madison's words, and I read them again, and then I turned to the facts of Congress today, facts that journalists and political commentators know and ignore at the same time. (Psychologists call that condition "denial.") Facts like these:

"The average member of the House of Representatives has to raise $367 for every hour they're supposedly serving their constituents to pay for their re-election campaigns. The average senator needs to wrangle $819 an hour" (Mother Jones, cited in The Week, June 29, 2012). Depending on the Congress member, this takes 30% to 70% of their time (Constitution USA With Peter Sagal, PBS, May 28).

Obviously, Congress members so dependent on money must satisfy the sources of that money. And who do they satisfy most? "Donors representing 0.01 percent of the U.S. population contributed 28 percent of the $6 billion spent on the 2012 elections" (Bloomberg.com, cited in The Week, July 5-12).

Satisfied big donors give big benefits: "The average member of Congress receives a 1,452 percent salary hike when she or he leaves office and becomes a corporate lobbyist, with some making in excess of $1 million a year" (The Nation, cited in The Week, March 30, 2012).

Pious editorials demanding campaign-finance reform and clean lobbying laws are written ad nauseam, exercises in helplessness directed at the same Congress that does this:

"Since 2007, 73 members of Congress have sponsored bills that benefited themselves or their families, The Washington Post reported this week. Former Democratic Rep. Dennis Cardoza [Calif.] helped get tax breaks for racehorse owners, and then bought seven horses himself; Rep. Mike Kelly (R-Pa.) co-sponsored a natural gas bill even as Exxon Mobil negotiated for his wife's shares in two gas companies. The practice is permitted under rules that Congress wrote for itself" (The Week, Oct. 19, 2012).

Newsweek, Nov. 21, 2011: "[M]embers of Congress are free to buy and sell stocks in companies whose fate can be profoundly influenced, or even determined, by Washington policy. ... [S]ome of Congress's most prominent members are in a position to routinely engage in what amounts to a legal form of insider trading."

That article damns both parties.

On the Democratic side: Rep. Nancy Pelosi (D-Calif.), Sen. Max Baucus (D-Mont.), former Massachusetts senator and now Secretary of State John Kerry, and Rep. Jared Polis (D-Colo.). Baucus, Kerry, and Polis made hundreds of thousands of dollars investing in pharmaceutical and health care companies while negotiating and writing Obamacare legislation. (And you thought they were acting on your behalf and for your good. That's so sweet of you.)

That Newsweek report tells how Rep. "John Boehner (R-Oh.), then House minority leader, [invested] tens of thousands of dollars in health-insurance company stocks, which made sizeable gains when the proposed public option in the reform deal was killed." (And you thought he was championing individual choice. That's sweet, too.) The article also details the profitable shenanigans of Rep. Spencer Bachus (R-Ala.), Rep. Shelley Capito (R-W.Va.), and former Speaker Dennis Hastert (R-Ill.).

It's all legal, if by "legal" you don't mean moral.

Lawmakers make laws that allow the lawmakers to make lots of money. Presumably, presidents sign some of these laws. Others are "rules" that the Senate and House keep largely to themselves. Meanwhile, journalists and political commentators continue to discuss the motives of these politicians without a word about the personal monetary ramifications of their decisions.

As for reform: With both parties steeped in legalized corruption, no reform effort from within Congress has gained traction.

As for the House being stuck in place: Since both parties practice gerrymandering coast to coast, no one in power wants to do anything about that. (To vote in a gerrymandered district is to vote in a fixed election, an election massively weighted toward one side. Whatever that is, it is not a republic.)

Why would such a Congress care much about protecting and exercising its legitimate – some would say sacred – constitutional powers?

According to the Constitution, only Congress can make a law, which the courts can then interpret. The president "shall take Care that the Laws be faithfully executed" (Article 2, Section 3). But Congress members more loyal to their party than to the Constitution tolerate "signing statements" because presidents of both parties engage in that practice, though the staid American Bar Association has declared it "contrary to the rule of law and our constitutional system" (The New York Times, Jan. 3).

First, it's signing statements. Then, FISA courts, which "for years [have] been developing what is effectively a secret and unchallenged body of law" (The New York Times, July 7). Then Pres. Obama decides it's legal for him to start drone wars and assassinate Americans at will, with no oversight, and this goes unchallenged, for all practical purposes, to the extent that "the Obama administration refused to send anyone to a Senate hearing on targeted killings" (The New York Times, May 10) – nor does Obama feel compelled to explain his legal rationale for these things. More secret law.

Congress and the people accept all this because corruption, when it becomes commonplace, drains the collective will. Where do you even begin to reform such a thoroughly compromised system?

Perhaps you begin by a refusal to speak about it as though it is what it is not. It is not a functioning republic.

Eighteenth century quotes are from The Creation of the American Republic: 1776-1787, by Gordon S. Wood, and The Debate on the Constitution – Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification, Part One: September 1787 to February 1788, edited by Bernard Bailyn.