Epilogue

• Author: Jack Fruchtman
• Profession: Professor of Political Science and Director of the Program in Law and American Civilization at Towson University, Maryland
• Pages: 239-259

American Constitutional History: A Brief Introduction, First Edition. Jack Fruchtman.

© 2016 John Wiley & Sons, Inc. Published 2016 by John Wiley & Sons, Inc.

Epilogue

James McHenry, a Maryland signer of the Constitution in 1787 – Fort

McHenry in Baltimore is named in his honor – watched Benjamin

Franklin as he left the convention after the final draft was adopted.

Awoman by the name of Mrs. Powel walked up to the great scientist

and asked him what type of government the delegates had given

Americans: a republic or a monarchy. Franklin’s answer: “A republic, if

you can keep it.” Americans have been “keeping” their republic for over

225 years. As this book has explained, while it is not the same republic

Franklin was talking about, nevertheless it is a republic. No one can

accurately predict the future changes the Constitution will undergo.

However, one thing is certain: it will change as the government and the

American people deal with economic regulations, individual and civil

rights, and executive power. The Constitution changes whenever the

government confronts the various crises that inevitably arise.

Policymaking will depend on who governs: Democrats, Republicans,

conservatives, liberals, libertarians, or any combination of these.

When one political party fails to control the presidency and both

houses of Congress, the results may lead to gridlock. This was the

experience when George W. Bush was in the White House as congres-

sional Democratic majorities obstructed bills and executive nominations.

It occurred during the Obama administration after the 2010 by‐election

when the Republicans gained control of the House of Representatives as

the nation witnessed a deadlocked Congress incapable of major action in

240 Epilogue

the realm of tax and immigration reform, economic stimulation, job

growth, and other pressing matters. In 2011–2014, the House of

Representatives consistently passed one measure 56 times, a repeal of the

Obama health‐care law. The Senate, controlled by Democrats, declined

to take up the bill. Congress in that period was slow to pass laws in

matters concerning the economy and in confirming judicial nominations

and presidential cabinet appointments. In the 2014 by‐election, the

Republicans gained control of the Senate as gridlock continued, and in

June 2015 Congress managed to pass the major trade bill President

Obama supported.

Part of the impasse in the Senate was due to the filibuster rule requiring

60 votes to end debate. The filibuster does not appear in the Constitution.

Originally, filibusters required politicians to speak on the Senate floor for

hours, even days and weeks, to hold up a vote. Today, a senator need

only announce that he wants to filibuster and no vote takes place until

the leadership garners 60 votes for cloture (ending debate). In the

summer of 2013, Senate Democrats and Republicans compromised to

confirm several presidential and judicial nominations without a filibuster.

The agreement did not include nominees to the Supreme Court.

Supreme Court decisions have historically hinged on the ideological

makeup of the majority. Presidents typically nominate those whom

they think share their political ideology. Some presidents have been

displeased after nominating those who not only acted independently,

but contrary to the way the president envisioned. Dwight Eisenhower

complained in his memoirs that the two biggest mistakes he made as

president were Earl Warren (1953–1969) and William Brennan (1956–

1990). They were far more progressive than he predicted. President

George H.W. Bush too was dissatisfied by David Souter’s service on

the Court from 1990 to 2005.

Meantime, Chief Justice John Roberts continued his effort to build

consensus on the Court, one of his main goals when he was nominated

in 2005. In the October term 2012, he helped guide the Court to

unanimity 49 percent of the time out of a total of 78 signed opinions, a

remarkable record. A year later, the rate increased to 66 percent, though

there were several passionate concurrences, which indicated agreement

on outcomes, not on reasoning. In the October term 2014, the justices

voted together 40 percent of the time in 69 signed opinions, and once

again Justice Anthony Kennedy was the swing vote. He typically joined