There is, it would appear, a blind spot the founding fathers didn't anticipate. They lived in a simpler time, a slower-moving time, and a time where they were themselves still present to provide context to their admittedly malleable laws and dictates. In the intervening centuries, so much of their ink has eaten into stone, and we're no longer able to suggest that there was something they didn't forsee.
The Legislative, Executive, and Judicial branch- or Paper, Scissors, and Rock, if you prefer- are supposed to have circular powers over one another, assuring that each branch does it job. Elections by the people stop the dead weight, and a free and open press, fueled by the public, is supposed to give weight and mood to the proceedings, ensuring that all goes according to public interest.
But that doesn't really happen anymore, does it? The press has collapsed and failed, and it's time to stop assuming that the amateurs can police the professionals. It's time to institute paper, scissors, rock, hand grenade.
In the absence of quality journalism of action- and not this "impartiality" bullshit that allows the perps in question to use news outlets like direct fax lines to the populace- who is watching the watchmen?
Let's look at the torture debate, for example: the Judicial branch- or Rock- sits there, like a Rock, because they can't rule on the constitutionality of any of this until somebody brings it to them.
The legislative branch can't be counted on to do anything except provide appearances, because so many of them are so culpable in so many things. Dragging Nancy Pelosi into this is a clear example of this Mutually Assured Destruction theory of governance, wherein everyone has dirt everyone, so nobody is without sin enough to cast stones.
And Obama- the man with a blessedly clear record thanks to his fast break to the White House, he can't bite the hand that feeds him- he needs a placated Congress if he wants to pass health care reforms, bail out banks, or do basically anything.
Why should we allow to continue a system wherein the only way Obama could press for an investigation into, or enforcement of the law is to destroy his own capacity to get anything done in Washington?
Why should the Supreme Court be unable to say someone is violating the Constitution until someone brings it to them?
How did the founding fathers allow for a paralysis in the Executive and Judicial branches that would force the Legislative branch to laughably police itself?
So here is my proposal- completely sans any sort of details, about which you can argue below. A four-branch system of government:
Executive
Legislative
Judicial
Investigative
The job of the Investigative branch would be to apolitically investigate violations of constitutional authority, and would have policing powers over the other branches. They could therefore circumvent lower courts and present tricky problems of constitutional power directly to the Supreme Court for investigation. The Executive branch would no longer have to take the heat over every issue of legality, and Obama wouldn't be accused of witch-hunting previous administrations, because it wouldn't be him doing it. The Supreme Court wouldn't have to wait to rule on blatantly unconstitutional action until someone with the time, money, and gumption could get it all the way to them.
And most importantly, the Legislative branch wouldn't be able to protect its own anymore.
I don't know how this would operate, or how to integrate this into our system of checks and balances so that it didn't become grossly overpowered. Theories? Thoughts?