Will the US Constitution survive?

United States

Prof. Dr. Peter Lösche

To person

Prof. em. Dr. Peter Lösche, taught at the Department of Political Science at the Georg-August University in Göttingen. His work focuses on politics and society in the USA, parties and associations as well as party and election campaign financing.

The United States Constitution is the oldest and arguably the most successful written constitution in modern history. It came into force in 1789 and was supplemented by the Bill of Rights in 1791. Since then, the essence of the constitution has not been changed. In principle, continuity also applies to the constitutional organs, to the Congress, to the presidency and to the judiciary.

The "Bill of Rights" of March 27, 1790. (& copy AP)

Since then, the essence of the constitution has not been changed. In principle, continuity also applies to the constitutional organs, to the Congress, to the office of president and to the judiciary with the Supreme Federal Court of Justice at its head. However, something like a silent constitutional change has taken place - if only because the USA expanded territorially, with the number of individual states growing from originally 13 to 50 today. Industrialization, urbanization and, in the last half century, the high-tech development brought about fundamental changes in society and thus in the political system and its institutions. This change can be illustrated by the history of the presidency.

Powers of the President

Originally, and well into the 19th century, the president resided unaided in the White House at 1600 Pennsylvania Avenue. Presidents were expected to write their own speeches and do their own correspondence. Most of the incumbents hired office workers, but they had to pay for them from their own resources. It was only in the eighth decade of the republic's history that Congress approved a budget title that would finance the salary of a personal secretary to the President. In the 20th century the number of employees increased, especially during the First World War (1914-1918) and the Great Depression (from 1929), when war and emergency authorities were set up that were directly assigned to the President. After all, Herbert Hoover, president from 1929 to 1933, that is, in times of the "Great Depression" that followed the collapse of the global economy, already had four personal secretaries working there, and there were a total of 40 typists, clerks and messengers.

Nevertheless, a commission set up by his successor in office Franklin D. Roosevelt (1933-1945) to consider the reorganization of the executive came to the conclusion: "The President needs help", the President urgently needs help to carry out his duties . As a result, the Executive Office of the President was set up, a kind of state chancellery. This created a presidential bureaucracy with a changing number of employees and offices. The number of employees cannot be determined precisely because many of those who work there have been seconded from other offices and are listed on their salary and personnel lists. Their number should be between 1,500 and 2,000 today.

In the modern times of the 20th and 21st centuries, the office of President is again and again the focus of general interest, high expectations and astute political and historical analyzes. This is no coincidence, because in the US political system it is the only national institution that is elected through electoral men or women by citizens of the entire nation. At the same time, the president - not least as head of state - represents a symbol that (co) creates national identity, he is always present in the US media. In addition, after the end of the Cold War and the collapse of the Soviet Union, he is the leader of the only remaining military, economic and political world power in a "unipolar world". The constitution states at the beginning of Article II: "The executive power rests with the President of the United States of America." Or interpreted in the same way and formulated more pointedly: The President is the executive. Nobody can deny that the President of the USA has power, and that he can sometimes also be said to have been in power, especially in the last century. The presidents do not simply have usurped power and competencies that previously lay with the parliament, the individual states or the municipalities because of their willpower or charisma.

Rather, social, economic and political changes, the development of the American welfare state and the rise of the USA to a world power, developments that took place in a long process and required a more direct influence on the part of the state, were responsible for their increase in power. Since the 19th century, a nationwide market and a corresponding transport system have emerged that broke through old regional and national borders. At the same time there was a concentration of capital and large corporations like the Rockefeller Empire were formed. The frontier, the open country unpopulated to the west and southwest, was populated, the state territory expanded to include new federal states. Ultimately, the American welfare state emerged as a reaction to the blatant poverty and horrific social misery in the Great Depression - albeit with a delay compared to Europe - with the New Deal legislation, unemployment and pension insurance as well as labor legislation were introduced .

Active intervention options

In the US government system, the presidential office was the institutionally predetermined location from which active, direct, instantaneous and nationwide intervention in the economy and society could be made. In view of the "nationalization" of economic and social problems and the entry of the United States as a great power into international politics by the First World War at the latest, a continuous structural, social and economic as well as foreign policy could only be pursued from the White House. Only the president was able to regulate the economy, society and the international system. The other two powers, the judiciary and the legislature, were and are unsuitable for this. In principle, the Supreme Federal Supreme Court is relegated to a passive role; it can only take up and decide those cases that reach it after a long court path. And even then the court can only say "yes" or "no", but not politically shape it. And in both houses of Congress, in the Senate as well as in the House of Representatives, local, national and regional or individual economic interests dominate, but the national common good is not necessarily in the foreground.

Crisis management

Of course, the central, powerful position of the president has been strengthened in times of crisis, for example in World War I and World War II, in the Great Depression and after the terrorist attacks on the United States on September 11, 2001. In war and crisis - at least initially - all US flocks -Americans for their President, for the Commander-in-Chief and the Head of State, for the personified symbol of the nation. Opinion research then measures unprecedented heights in the president's popularity, for example with George Bush Sr. in the second Gulf War and with George W. Bush in the war against the Taliban and at the beginning of the campaign against Iraq. The presidents then seem to be in an almost omnipotent position vis-à-vis Congress. In times like these, they push through bills within a few days that would otherwise have taken them years - if the Senate and House of Representatives had approved at all.

For example, after the terrorist attacks in 2001 on New York and Washington, George W. Bush managed to have an anti-terror law package passed six weeks after the attacks, the PATRIOT Act (Provide Appropriate Tools Required to Interrupt and Obstruct Terrorism, Sorge for appropriate measures to prevent and combat terrorism). According to this, persons suspected of terrorism can be arrested and libraries, banks, shops and universities can be searched, if relevant information for the fight against terrorism can be obtained. Critical voices have raised the question of whether this would not repeal the Fourth Amendment to the US Constitution, which stipulates that "the right to the security of people and homes, documents and property from arbitrary search, arrest and seizure" does not may be injured.

A new giant authority was created for internal security, the Department of Homeland Security. Its current tasks were previously divided into over 100 different offices. 27 authorities were combined in the new Office for Homeland Security. It has 172,000 employees and a budget of $ 37 billion. The former immigration service, the border police and the coast guard were integrated.

The internment of around 650 - non-American, predominantly Arab and Muslim - prisoners at the US air base at Guantanamo Bay in Cuba, who were arrested as suspected terrorists after the terrorist attacks of September 11, 2001, caused international attention. At first they were not considered prisoners of war, but rather "illegal fighters" (unlawful combattants) and therefore did not fall under the Geneva Convention of 1949, which does not recognize this term. It is now clear through a decision by the Supreme Court that they are under US law.

Authoritarian tendencies

After a wave of patriotism in the wake of the terrorist attacks, the American public has increasingly critically asked and discussed whether certain constitutional principles have not been and are being violated by the emergency and security laws.

The debate is also about whether the president has not fallen into uncontrolled power and whether what has been called the "imperial presidency" under Presidents Lyndon B. Johnson and Richard Nixon is developing. The creator of this term, the historian Arthur M. Schlesinger, understood several things to mean:

  • that powers that actually belong to the legislature have been usurped by the president, in particular the right to declare war;
  • that the confidentiality of decisions lacks the transparency necessary for democracy;
  • that emergency laws would be used against the people, especially against opposition groups;
  • so that overall the system of checks and balances in favor of the executive would get out of whack.