WHY Constitution Gets Your Vote

Review by Bill Doughty

There’s a key reason Sailors, Marines and other uniformed guardians of democracy pledge they “will support and defend the Constitution of the United States against all enemies, foreign and domestic … [and] will bear true faith and allegiance to the same…”

The Constitution provides a blueprint for balance of power, but it must be respected, supported, and defended. And, according to law professor Kim Wehle, author of “How to Read the Constitution and WHY” (HarperCollins, 2019), we must have accountability when the Constitution is violated in order for government to be effective and to prevent the rise of autocracy.

“Let’s be clear about one thing, for starters: The Constitution is not a bulwark,” Wehle writes. “By this I mean it does not erect an impenetrable wall around the citizens of the United States to defend them against tyranny and abuses. It is porous. It needs shoring up from time to time.” The ultimate accountability: people’s votes.

Wehle

Professor Wehle is a former associate independent counsel under Independent Counsel Kenneth Starr during the Whitewater investigation of Bill Clinton and Hillary Rodham Clinton in the early 1990s, leading to the Monica Lewinsky investigation and impeachment of President Bill Clinton.  

Wehle writes, “This is a book about the Constitution. If you’re looking for something to confirm your side of things politically, you might be wasting your time.” Instead of a political rant, Wehle teaches about the history, philosophy, and structure of the document and how it has been amended and interpreted over time.

Think about how the Constitution has evolved. When first written in 1789, the Constitution, for the most part, was for wealthy white men. Most African Americans were owned by other Americans, including some of the framers. And women would not be allowed to vote till 1920.

The United States Constitution was put on public display for the first time Sept. 17, 1970. (National Archives)

It took amendments to the Constitution and action as permitted by the Constitution to bring about progress for people: laws and acts passed by Congress and the states; orders and actions initiated by the Executive, including the president; and judgments and rulings passed by courts, including the Supreme Court.

Wehle not only outlines how the Constitution is constructed, but she also explains how it can be interpreted. Words can have more than one meaning, and she argues that’s part of the built in flexibility in the nation’s founding document.

“Strange as it sounds, reading the Constitution is a lot like reading poetry. Why? Because poetry requires careful focus on individual words as well as analyses of competing meanings.” Wehle says, “There is no such thing as a plain reading of the Constitution.

What is “necessary,” “essential,” “useful,” or “general welfare”? What about the meaning of these verbs: “prohibit,” “abridge,” or “respecting,” which Wehle says is “the broadest verb of all.” Even how commas are used can punctuate controversy over meaning; just read the Second Amendment and consider the commas and their relation to “a well regulated Militia.”

Sailors assigned to USS Constitution march(SN Michael Achterling)

Military readers will find interesting discussions about the right to wage war, lines of enforcement and chain of command, rights of women, and rights for battlefield chaplains. 

For example:

Tension between Article I granting Congress the power to declare war and Article II naming the president the commander in chief of the armed forces. Wehle compares the example of “the bombing of Pearl Harbor to authorize America’s entry into World War II” with Congress’s “ongoing funding for the armed forces, thereby leaving the president free to ‘execute’ that declaration…”

Discussion about the War Powers Resolution passed in 1973 after the Vietnam War. “The president may introduce armed forces only pursuant to (1) a declaration of war, (2) a specific statute, or (3) a national emergency created by attack upon the United States.”

How departments and federal agencies within the executive branch (including the Department of Defense) interact with each other and other branches –– legislative and judicial. Wehle discusses interrelated but distant lines of enforcement responsibility meant to create a balance-of-power safety net but which sometimes acts as a sticky web that bogs down action.

“The so-called war on terror under President George W. Bush,” when his administration drafted a set of “torture memos” and “authority to torture or to spy on U.S. citizens without a warrant.”

The unconstitutionality of excluding women from military academies. In 1996 the Supreme Court “reasoned that the male-only policy at the Virginia Military Institute was based on gender stereotypes.”

Underlying tensions within the First Amendment, providing that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Wehle writes, “If the government makes a law to facilitate the free exercise of religion –– by providing religious ministers to soldiers during battle, for example –– it could be criticized for ‘establishing’ religion. If it refuses to do so on First Amendment Establishment Clause grounds, it could face ‘free exercise’ challenges from soldiers stuck on foreign soil without access to ministers due to government’s decision to deploy them.”

No monarchs, dictators, or military rule –– not only federally but within any of the states. Such a system is unconstitutional; “Elections are the only way of doing business” both at the federal and state level.

Wehle explores controversial topics, including abortion and privacy, race, gender, sexual orientation, immigration, voter suppression, “dark money” influencing Congress, originalist vs. activist views of courts, and a continuing amassing of power by the Executive, with ineffective checks by the Congress and the courts.

Published more than a year before the insurrection by Trump supporters, who attacked police and guards at the nation’s Capitol on January 6, Wehle seems to warn about the threat of such an event as she raises concerns about a rising threat of authoritarianism and autocracy –– and need for accountability.

“It is no exaggeration to say that in the twenty-first century, the structure of the Constitution is being tested like never before. There are several reasons for this … But mostly, the Constitution’s structure is being tested by the absence of accountability. The Constitution sets up three branches of government –– the legislative, the executive, and the judicial –– and makes no one person or group of persons in charge of everyone. If one branch breaks rules, the other two stand ready to hold the rule breaker accountable. That way, nobody amasses too much power, which would be a recipe for tyranny.”

Wehle warns passionately of challenges in the era of smart phones and social media –– very relevant in light of current revelations by Facebook whistleblower Frances Haugen on CBS 60 Minutes and in testimony to Congress. Haugen, like Wehle, sees some use of algorithms of hate, anger, and fear as a threat to democracy. 

Wehle also warns of a “next frontier” of artificial intelligence with sophisticated face recognition technologies.

Without an effective legislature, fair judiciary, and responsible executive, Wehle warns, “There is a real chance of democracy failing in our lifetimes, with tyranny taking its place.”

Yet, Wehle writes with hope: “If you take nothing else away from this book I hope you take away an appreciation of how we cannot take the Constitution for granted.”

The oath to support and defend the Constitution includes, at least intrinsically, a promise also to be accountable and to cast a vote for greater accountability.

“Rights and freedoms provided by the Constitution are like winning the lottery,” Wehle says, “But as with a lottery ticket, we need to cash in that windfall for the piece of paper to retain its value, and that means voting.”

U.S. Marine 1st Lt. Jorge Luis B. Diaz with 7th Engineer Support Battalion, 1st Marine Logistics Group, participates in the Federal Voting Assistance Program at Marine Corps Base, Camp Pendleton, CA, Jan. 11, 2018. VFAP provides training for installation and unit voting officers to ensure service members, their eligible family members and overseas citizens are aware of their right to vote and have the tools and resources to successfully do so –– from anywhere in the world. (Cpl. Andre Heath)

TOP PHOTO: Capital Guardians provided crowd management and traffic control in support of local and federal agencies during the 57th anniversary of the March on Washington Aug. 28, 2020. The mission highlighted the D.C. National Guard’s commitment to ensure District citizens and visitors had the right to practice their First Amendment rights. Soldiers and Airmen worked alongside the Metropolitan Police Department, the Washington Metropolitan Area Transit Authority (WMATA) Metropolitan Police Department, D.C. Fire & Emergency Medical Services Department, D.C. Homeland Security and Emergency Management Agency. (TSgt Arthur Mondale Wright)