Is the Constitution Mere Parchment?

The very issue of the fragility of the Constitution, reflected in James Madison's grim warning that mere "parchment barriers" will not protect the citizenry from governmental aggrandizement of power and indifference to its boundaries, is before the American people in the impeachment inquiry into the presidency of Donald J. Trump.

The Constitution is not a self-implementing machine. It requires men and women at the helm to exercise their powers and perform their responsibilities with vigilance and integrity. The subversion of the Constitution by a president, for example, may be effectuated through the inattentiveness of a Congress untutored in its constitutional powers and duties, one that is quiescent and unmindful of its premier role and place in our constitutional system or, more likely, one filled with presidential partisans clothed with surpassing ambition who care more about party loyalty, individual success and personal longevity in office than in the defense of America's Constitutional Democracy.

Congressional Republicans—including the Idaho delegation-- who thus far assert that they see nothing impeachable in President Trump's acts, are worrisome. They ignore the overwhelming—and growing-- evidence of Trump's malfeasance: abuse of power, corruption, bribery, obstruction of justice, violation of his oath of office, violation of the Take Care Clause of article 2 of the Constitution, willful violation of the federal criminal code, violation of the Impoundment Control Act and, among other offenses against the Constitution and the laws of the United States, his solicitation of foreign interference in American elections for his own self-benefit that will permanently deform the conduct of presidential campaigns.

Members of Congress impervious to Trump's impeachable offenses and vaulting ambition, marked by his disdain for the rule of law and his penchant for authoritarian ways and means, mock the foundational principles and expectations of the Doctrine of Checks and Balances, as explained by Madison in No. 51 of the Federalist Papers. In that essay, Madison declared that the maintenance of constitutional government requires vigorous defense of the doctrine of checks and balances. In theory, members of each branch would possess the requisite personal and institutional interests to defend their constitutional turf.

Congressional Republicans who defend Trump, and exalt his concentration of power in the Oval Office, are engaged in the demise of their own institution. Their failure to demand of Trump cooperation with congressional subpoenas will eviscerate the congressional power of oversight, critical to the performance of lawmaking and informing functions. Their failure to call Trump to account for impounding funds allocated to Ukraine reflects abdication of the appropriation power and the constitutional role of Congress in matters of foreign affairs and national security. The Republicans' obeisance to Trump, moreover, questions the very premise of separation of powers and the independence of the legislature.

In a sterling opinion, U.S. Federal District Judge Ketanji Brown Jackson, plumbed the depths of Anglo-American legal history and rejected as "fiction" the Trump Administration's arguments that top White House aides are immune from congressional subpoenas. "Presidents are not Kings," she reminded Trump, his supporters and an electorate deeply in need of a lesson in constitutional history about executive accountability to the rule of law. Indeed, the assertion of immunity from congressional subpoenas is the beginning of a power without end.

Nearly three quarters of a century ago, another judge named Jackson—U.S. Supreme Court Justice Robert H. Jackson—imparted another lesson to Congress. In 1952, in the Steel Seizure Case, Justice Jackson, in a landmark concurring opinion, reminded Congress of its grave responsibility for maintaining checks and balances, free government and republican institutions.

Justice Jackson wrote, "I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems." Our Constitutional Democracy requires presidential subordination to the Constitution and the rule of law. It requires as well, congressional vigilance in enforcing checks on the president.

Impeachment, the Grand Inquest of the Nation, as George Mason of Virginia characterized it was, for the Framers, the last, best hope for maintaining republican government. Congress should not be the first branch to sacrifice a system of government which, despite its imperfections, remains a beacon of light to most of the world.