In schools, civic education tends to accord outsize importance to the Bill of Rights at the expense of the more complex topics of separation of powers, federalism and other pillars of the constitutional edifice. Hamilton had opposed a Bill of Rights in part because he thought these mechanisms safeguarded rights better than protections inscribed on paper could. Journalists and politicians equally obsess over winners and losers. The public hears whose ox is being gored, but too rarely the importance of the constitutional process by which the goring occurs.
A Madisonian people, by contrast, will care about constitutional integrity in addition to political outcomes. This is for constitutional reasons but also for selfish ones: The power whose use one celebrates today will be wielded by a leader with whom one disagrees tomorrow, a lesson Democrats who endorsed Mr. Obama’s unilateral executive orders are now learning. Such citizens will also understand that they occupy the country along with more than 325 million fellow citizens whose views must be accommodated.
Crucially, they will not tolerate members of Congress who surrender legislative authority, even for results to some voters’ momentary liking, because they will prioritize enduring constitutionalism over transient policies. They will realize, too, that maintaining legislative authority, which is more immediately responsive to local concerns, serves their own interests as well.
Finally, some group among a Madisonian people will have the foresight to step off the cynical and anti-constitutional carousel according to which President George W. Bush did it so Mr. Obama could do it so Mr. Trump might as well, too.
None of this excuses members of Congress from their duties, which sometimes include withstanding public opinion. Even the Democratic justification for an override vote sure to fail is, as the House speaker, Nancy Pelosi, put it, to create a record so the issue can be resolved by the courts.
To her credit, Ms. Pelosi did say that “we are Article I, the first branch of government.” But she was less reticent about executive power when Mr. Obama acted unilaterally on immigration. In both cases, the House should have defended its constitutional turf. It is no solution — on the contrary, it presents its own constitutional problems — for one party to ask the courts to provide the institutional protection the whole House declined to provide itself.
As for the Senate, one purpose of its members’ six-year terms is to enable what Madison called “great firmness” in resisting public whims and defending constitutional principles. So much for that. Every legislator is accountable for how he or she votes on the emergency declaration, but Madison expected those immediately facing re-election to capitulate more easily to public opinion. There are worse political sins. Harsher criticism should be reserved for senators who caved without facing immediate electoral consequences.
But their constituents who demanded this constitutional surrender — especially those who profess fidelity to the Constitution as the bedrock of their politics — deserve the sternest rebuke. It is an axiom of republican politics that everyone incurs criticism sooner or later, except the people. Yet if the people care solely about expediency at the expense of law, we are in a “wretched situation” from which the Constitution will not rescue us.
Greg Weiner (@GregWeiner1) is a political scientist at Assumption College and the author of “Madison’s Metronome” and “American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan.”
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