A Question for the Presidential Candidates

By Eric Lane 
Co-author of The Genius of America

In our extraordinarily long presidential campaign the Republican and Democratic contenders have already debated many times and been asked questions on innumerable subjects. But puzzlingly, what has not been asked or meaningfully addressed is a question about one of the most critical dilemmas facing the next president. A question like: How will you as President insure that America’s constitutional republic survives a long war on terrorism?

Perhaps the question seems silly or overwrought. "Of course the Republic will survive, how can it be otherwise?" most of us would think. "We have always been free. We will always be free."

But such a view is based on a dangerously false premise. Nothing about democracy's past success guarantees its future success. Complacency about our freedom (or the system which created it) in fact threatens its existence. "Democracy is never a gift bestowed by benevolent, far seeing rulers who seek to reinforce their own legitimacy," the historian Sean Wilentz has wisely observed. "It must always be fought for, by political coalitions that cut across distinctions of wealth, power, and interest. It succeeds and survives only when it is rooted in the lives and expectations of its citizens and continually reinvigorated in each generation. Democratic successes are never irreversible."

Such reinvigoration requires discussion—discussion of our values and goals as a society and what trade offs and compromises we are prepared to make. That is the system the framers invented for us, if, to paraphrase Ben Franklin, we can keep it.

In just over a year we will elect a new President of the United States. He or she will then assume the awesome responsibility, through command of the military and security forces, of protecting Americans from terrorists who really do want to harm us and destroy our form of government and society.

But central to our government and society are the freedoms that are protected through our system of separation of powers and checks and balances. How we protect these freedoms, while also providing heightened long-term security is one of the most important questions that the new president will have to answer.

This question is clearly timely. Since September 11, President Bush has acted explicitly on the theory that the executive alone is charged with determining both the nature and seriousness of any threat and the necessary action to meet it, even if such action curtails freedoms. "Monarchial notions of prerogatives" justify such, Vice President Cheney has claimed. On this theory, the Bush Administration has justified going to war in Iraq, wiretapping American citizens without Congressional authorization and torturing people in apparent disregard of congressional instructions. So extreme have the assertions of executive power seemed to some conservatives, that one of the nation’s leading conservative lawyers Jack Goldsmith resigned from the Department of Justice and wrote a book in protest.

But the notion of a constitutionally unrestrained president is not the product alone of the present administration or Republicans. A recent book by the journalist Charlie Savage makes clear that the Clinton administration embraced the idea of the president’s right to act unilaterally on several occasions.

Clearly, with the ongoing war on terrorism and growing assertion of executive power, we are at a crucial moment in the 220 year long debate about the balance of powers within our government. We need to ask all of the candidates the question. That would raise everyone's awareness. The voters, the new president, and, importantly, Congress. One reason the president has been able to assert such a powerful version of the executive is that his supposed counterweight, Congress, has not been doing its job as a check and balance. That is why The congressional scholars, Thomas E. Mann and Norman J. Ornstein call it "the Broken Branch."

In recent years Republican congressional leaders have seen themselves "as field lieutenants in the president’s army," wrote Mann and Ornstein. And, while perhaps not so unanimously nor so consistently, this has been true of new Democratic controlled Congress, as well. Witness the speed with which the recently elected Democratic Congress enacted the new Patriot Act.

At the root of this breakdown of our unique democratic processes lies our complacency. Yes, in the 2006 election we Americans signaled our dissatisfaction with either the war or its management. But we have barely even debated the breakdown of process before or after the war in Iraq.

Would the decisions have been different if the institutions of our government operated as intended? We do not get to run history backward. But the likelihood is that debate and deliberation, as intended by the framers, would have sharpened the country's thinking about Iraq, producing either a more effective war and better planned post-war, or no war at all.

We are complacent because we are worried about our safety and because we have drifted away from a connection to the understanding that our constitutionally created decision making processes is critical to the protection of our liberty and security. James Madison thought the process created by the constitution was more important to our freedoms than even the bill of rights.

In fact, as a people, we are growing civically illiterate and, as a consequence, politically disengaged. We no longer know the obligations the Constitution places on our institutions, our elected officials, and on ourselves. This should not come as a surprise. Knowledge about our Constitution must be learned and we, in our families and in our schools, have stopped teaching it. Americans love the framers, gobbling up books about them, but know little about their most important work. "People revere the Constitution but know so little about it," the Senate’s great institutional voice, Robert Byrd, said two years ago, "and that goes for some of my fellow Senators." The validity of Byrd’s observation was made clear by a recent report of the Intercollegiate Studies Institute that finds that high school graduates cannot pass a basic civics test. The average grade was 50%. Four years of college do not make the matter much better in most cases, the report found. "The average college senior knows astoundingly little about America’s history, government, international relations and market economy, earning an "F" on the American civic literacy exam with a score of 54.2%," said the report. And this is not new.

From the 1960’s onward, civic education has been declining and by the 1980’s had nearly vanished. "It is striking how little energy is devoted to trying to engage citizens more actively in the affairs of government," Derek Bok of Harvard wrote in 2001, "Civic education in the public schools has been almost totally eclipsed by a preoccupation with preparing the workforce of a global economy. Most universities no longer treat the preparation of citizens as an explicit goal of their curriculum." Recent studies support this concern. One in 2002 found "that the nation's citizenry is woefully under-educated about the fundamentals of our American Democracy."

What are we to do about this problem? Of course, education is the only answer. But it is not easy to get Americans to see that this will not be easy. Civic Literacy is one of those "do-good" subjects often dismissed by supposedly more hard-nosed or more pragmatic people. Education of course does not occur only or even mostly in the classroom. Political campaigns can, if we force them to be, become moments for great national discussions. Now would be a good moment for that.

The framers worried that men love power (they didn’t think much about women loving power). They assumed presidents would try to arrogate power and that Congress would too and that they would stop each other. That idea has not been working quite right in recent years.

So let us ask each presidential candidate what he or she intends if elected. There are many ways to frame the question. We suggested one at the outset of this article. We conclude with another: "Candidate X, President Bush has claimed an inherent constitutional right to commit troops in Iraq and elsewhere, to wiretap with authorization, and to ignore congressional restraints on matters when question of national security arise. What is your view of this assertion of executive power? We should listen to their answer as if our democracy depended on it.

This essay is adapted from The Genius of America: How the Constitution Saved the Country and Why It Can Again. (New York, 2007) by Eric Lane and Michael Oreskes. 

Eric Lane is a professor of law at Hofstra University School of Law, a senior fellow at the Brennan Center for Justice, and the author of several texts on government. He has served as director of the New York State Commission on Constitutional Revision, as director of the New York City Charter Revision Commission, and as counsel to the New York State Senate Democrats.

Michael Oreskes is the executive editor of the International Herald Tribune. He has served as deputy managing editor, Washington bureau chief, metropolitan editor, and national political correspondent for the New York Times. 

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