The Founders' Great Mistake

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For the past eight years, George W. Bush has treated the White House much as Kenneth Grahame’s Mr. Toad treated a new automobile – like a shiny toy to be wrecked by racing the motor, spinning smoke from the tires, and smashing through farmyards until the wheels come off. Bush got to the Oval Office despite having lost the popular vote, and he governed with a fine disdain for democratic and legal norms – stonewalling congressional oversight; detaining foreigners and U.S. citizens on his “inherent authority”; using the Justice Department as a political cudgel; ordering officials to ignore statutes and treaties that he found inconvenient; and persisting in actions, such as the Iraq War, that had come to be deeply unpopular in Congress and on Main Street.

Understandably, most Americans today are primarily concerned with whether Barack Obama can clean up Bush’s mess. But as Bush leaves the White House, it’s worth asking why he was able to behave so badly for so long without being stopped by the Constitution’s famous “checks and balances.” Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency. Unless these problems are fixed, it will only be a matter of time before another hot-rodder gets hold of the keys and damages the country further.

The historian Jack N. Rakove has written, “The creation of the presidency was [the Framers’] most creative act.” That may be true, but it wasn’t their best work. The Framers were designing something the modern world had never seen – a republican chief executive who would owe his power to the people rather than to heredity or brute force. The wonder is not that they got so much wrong, but that they got anything right at all.

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Garrett Epps is a professor of law at the University of Baltimore.

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