The argument that popular understanding alters constitutional meaning is really just another form of the argument against written constitutionalism.
The revelations about IRS targeting of tea party groups, despite repeated denials by the Administration, and of manipulation of talking points about Benghazi, again despite repeated denials by the Administration, raise the question of what institutions should be used to stop government – especially executive branch – wrongdoing. This is a complicated issue, but I thought I would discuss the issue a bit.
The original Constitution employed the following political checks – good faith on the part of the executive branch (including prosecuting executive wrongdoers) combined with the check of legislative impeachment. This might have made sense in the beginning, with a small government, but certainly it does not work adequately for a large government.
One additional check in the early days involved lawsuits by individuals against government officials for wrongdoing. For example, if a government official searched or seized your property, one could sue him for trespass or some other relevant tort. The individual could defend on the ground that his action was legally authorized. But if it was not, then one might have a tort suit against him for damages to be paid out of his pocket. This provided government officials with incentives to conform to the law.
Unfortunately, over time the movement for big government made up immunity for government officials that prevented them from having to pay damages so long as they had a reasonable basis in the law for their actions.
The independent counsel law was a method developed in the 1970s to check executive branch wrongdoing, but it was poorly designed and led to overreaching on the executive branch. This was no doubt the result of it being developed by people during the 1970s who viewed the executive branch as simply the enemy instead of looking for a more balanced approach to combating wrongdoing.
I argued for an alternative to independent counsels through congressional investigations some years ago. To avoid the problem of partisan committees, I recommended an appointment method – having the Democrats appoint the Republicans on the committee and the Republicans appoint the Democrats – that would generate a centrist committee to do the investigations.
Finally, there are also inspector generals, who have the authority to investigate actions by the executive branch. These offices are much better balanced than the independent counsel, since they do not involve criminal prosecution. But while they provide information about wrongdoing, they cannot really take actions against it.
In the end, it is hard to know how effective these mechanisms are at protecting against government wrongdoing. Clearly, wrongdoing can occur, even serious wrongdoing. But whether additional institutions would have greater benefits than costs is hard to say.