Understanding Our Constitution - Part 29 - Defending Our Constitution

The Framers of the Constitution created the three separate but equal branches of the government so that each branch could “check” each other.

Supreme Court justices are obligated to void unconstitutional laws.

Legislators are obligated to vote against unconstitutional bills, repeal unconstitutional laws, and approve judicial nominees for the federal bench.

The president is obligated to veto unconstitutional bills, refrain from acting on unconstitutional laws signed by previous presidents, and nominate judicial candidates who are committed to the Constitution.

Until recently, most Americans were so accustomed to our Bill of Rights and other legal limitations on political power that they did not fully appreciate how fragile our constitutional system really is.

The Constitution is incapable of defending itself. There is no constitutional “police force” that stops offenders or brings them to justice. The primary “check” of the citizenry on the unconstitutional conduct of government officials is the electoral process. Unfortunately, between elections, in a short period of time, people can lose their liberty, their businesses, and their personal possessions.

As we have witnessed, there are no assurances that the minority party will not be abused by the majority party that holds the reins of power. There are no assurances that threats, bullying tactics, or bribes are not used.

The Framers of the Constitution tried to discourage the election of corrupt officials by a series of requirements and procedural hurdles. But, once in office, the officials are essentially “on their honor” with respect to their constitutional responsibilities. Again, we have seen how power corrupts.

The Constitution required the President to take the Oath of Office in public - explicitly binding himself to the Constitution. This is supposed to provide some assurance that the executive power will stay within the framework established by the Constitution.

A.V. Dicey, a 19th century British Constitutional theorist, in “Dicey Law of the Constitution”, identified the three principles which together establish the rule of law:

(1) the absolute supremacy or predominancy of regular law as opposed to the influence of arbitrary power
(2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts
(3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.

Dereliction of duty, although usually referring to a specific military offense, is also used to describe an elected official failing to perform his or her elected duty, not following the rule of law, or not adhering to the Constitution. It is a failure, through negligence or deliberate action, to not perform one’s legal or moral duty to a reasonable expectation.

Under military law, a person convicted of dereliction of duty might be given a dishonorable or bad behavior discharge. An elected official accused of dereliction of duty may not be re-elected or may be impeached.

Defense of the Constitution lies with each citizen - taking responsibility and electing those officials who will best serve the Constitution. In extreme cases, if deemed necessary - it may require taking action, to find an official guilty of dereliction of duty.