America continues to raise the stakes for decisions made by humans who are, like people with gambler problems, inherently fallible. Inevitably, when humans make poor choices that have dire consequences, we criticize and condemn those decisions, but we are much less likely to question the wisdom of giving so much power to individuals in the first place.
Our Founding Fathers had no illusions about preventing bad choices. Rather, they wanted to limit individual power and the harm that can result from it.
In July, the Supreme Court ruled that the president has absolute immunity for many crimes committed by exercising his official powers, and at least a presumptive immunity from criminal prosecution for actions taken in the course of official duties. Critics say the court is trying to rewrite the Constitution. While the court has granted constitutional immunity to members of the House and Senate for speeches and debates on their floors, it has refused to go further and grant such immunity to the president.
The greatest flaw of the immunity decision is that it relies so heavily on the wisdom and integrity of one man. The Founding Fathers correctly believed that all men, especially those in power, are vulnerable to temptation and corruption. They praised William III’s leadership in the Glorious Revolution, but criticized his power, which later turned out to be dangerous in the hands of George III. Thus, they designed the United States Constitution with many checks and balances on the President.
Today’s president is far more powerful than the one the Framers of the Constitution envisioned and especially rejected as immunity. The focus on the executive branch and the executive branch is in some ways expected. The Founding Fathers could not have foreseen how large the federal government would become as the nation expanded in territory, population, economic complexity, and international connections. But they would likely have been astonished nonetheless.
For example, the Constitution clearly defines the president as the commander in chief of the nation. While it may seem like the Founding Fathers gave the president a lot of power, it doesn’t seem so when we remember that the United States didn’t originally have a standing army. The Founding Fathers also clearly assigned war power to collective decision-making (Congress) rather than to an individual (the President). But from the Korean War to the Vietnam War to the Iraq War and beyond, a distrustful House and Senate have effectively ceded that power to the White House.
If Madison, Washington, and Jefferson had known how much power would be concentrated in the hands of the president, they would have strengthened constitutional checks and balances.
Gun safety is another example of how fallible human decisions continue to matter, this time in the wake of an aggressive Supreme Court and A distrustful Congress has allowed almost anyone to purchase what amount to weapons of war. Assault rifles, compared with the weapons available when the Constitution was ratified, greatly increase the consequences of gun owners’ poor decisions.
Even if the Founders intended to grant individuals the right to private ownership of arms (a historically dubious claim), the Second Amendment certainly does not guarantee the right to bear arms. Any (As an analogy, consider the Sixth Amendment to the Constitution, which guarantees criminal defendants the right to bear arms. Some They have lawyers, but not the ones they chose.
Gun owners own and bear weapons. This is true even when they are denied the weapon of their choice. Reasonable gun safety laws in the 21st century would allow the possession of weapons far more dangerous than the framers of the Second Amendment permitted, but the Supreme Court continues to up the ante. As a result, in late August, a federal district court judge, spurred by recent Supreme Court decisions, banned the possession of guns that have been illegal since 1934. An imperfect human with a machine gun is far more frightening than an imperfect human with a flintlock rifle.
Liberals’ relentless push to eliminate the Senate filibuster, which would allow the party with the most electoral power to restructure government without compromise, is another example of recklessly risking human decision-making. Though the filibuster is not in the Constitution, it has allowed the minority to thwart the majority and force compromise in Congress since the first Senate session in 1789. Supporters of abolishing the filibuster believe we can do great things if we are freed from the need for bipartisanship that the filibuster enforces. But it’s just as likely that generations of progress on civil rights, environmental protections, and workplace safety could be wiped out in a single election.
Finally, the concentration of power in the White House has increased the stakes of presidential elections, leading to a sharp rise in cruelty in campaigns and vote certification. Objectively speaking, electing the wrong president has become more dangerous, which has unleashed subjective emotions and encouraged the outrageous and illegal partisan actions that led to the January 6th riots, whose perpetrators justified it because they were trying to prevent the “catastrophe” of their opponent’s victory.
Humans inevitably make bad decisions. We should do all we can to block or overturn laws and practices that concentrate power, especially life and death and vital rights, in the hands of one imperfect human being or a few. We can lower the stakes, require Congress to do its job rather than delegating more power to the executive, and strengthen checks and balances. The Founding Fathers were right about a lot of things, but they were especially right that humans make mistakes.
David A. Super teaches at Georgetown University Law School.
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