By design, the U.S. Constitution makes the functioning of government slow and difficult.  Frustrated partisans—Democrats and Republicans alike—immediately begin to blame their system of government.

The defenders of the Constitution however are always at hand. They usually win the debate quickly. No doubters of the system have ever succeeded in turning their arguments into a national movement.

A recent debate broke out when a liberal media outfit, The Week, published two articles about the Constitution’s failings (see below). A response came from the National Review, an American conservative publication.

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Here are excerpts, first the National Review and then The Week…

 

The framers of the U.S. Constitution were right to fear direct majority rule. Majorities can become mobs.

Let’s Not Throw Out the Constitution

(By Jay Cost)

Writing for The Week, Ryan Cooper recently offered a provocative denunciation of the Constitution. “The American Constitution is an outdated, malfunctioning piece of junk,” he said, “and it’s only getting worse.” The basic problem, he argued, is that “elections generally do not produce functioning governments,” and he proposes a series of reforms — some modest, some radical — to increase democratic accountability within the government.

Cooper’s essay is of a piece with many I see nowadays, especially from progressives. Of late, the specific target of liberal ire is the Senate and its favoritism toward small, sparsely populated states. It is generally a very old critique. Woodrow Wilson once bemoaned our government’s rigorous separation of powers for how it denied the ability of the people to rule. Complaints such as those offered by Cooper and others come, more or less, from the same genre, even if the particular grievances have varied.

I am not entirely unsympathetic to their frustration: The Constitution is not like the Ten Commandments, handed down from God almighty. It is a document written by flawed humans that can, and often should, be critiqued. The Framers themselves acknowledged their own fallibility by including an amendment process.

Nevertheless, I think polemical calls to action such as this tend to dismiss out of hand the unique democratic theory underlying our system of government. In its place, they rely upon an undue confidence in the wisdom and virtue of numerical majorities.

There is admittedly a deep irony embedded in our constitutional order. By calling for public ratification of the Constitution, the Framers created a pristinely republican moment — one when the people alone would endorse the means by which they would be ruled. But in so doing, they erected a structure that has proven exceedingly difficult for subsequent generations to alter, let along tear down, leading to a “dead hand” of control that is not terribly republican. If our nation is a republic, it is one where the generation of 1787–88 continues to exercise significant authority over us.

Of the Founders, Thomas Jefferson was the most sensitive of this, which is why he promoted the radical notion of periodic constitutional conventions. No deceased generation, he believed, should bind the living. And so, he deduced, public debts could never be permanent, and the Constitution itself should be up for debate periodically. James Madison, on the other hand, was a skeptic of this notion. As he wrote in Federalist No. 49:

Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied.

This is not merely Burkean prudence — don’t go unnecessarily upending existing forms of government — though it is certainly that. It also reflects a skepticism about the capacity of the public to rule, Madison’s compliment about their “virtue and intelligence” notwithstanding. There is, Madison reckoned, a lot to fear from majoritarian government. A numerical majority, after all, possesses no inherently normative authority. It is, rather, a gauge that is often useful for determining what the public interest is. But it is not necessarily useful. Majorities can be factional — out for their own good rather than the good of the whole nation. Majority factions are the fatal disease of democratic government.

Our system of government, then, is best understood as one of mediated majority rule. Yes, the people at large are the only source of sovereignty, but that sovereignty is tempered in multiple ways. Checks and balances within the government, as Madison outlined in Federalist No. 51, are perhaps the most obvious form of mediation. The idea of the extended republic, introduced in Federalist No. 10, is another such instrument. There are other, more subtle ones as well.

There is a temporal mediation, which is to say that the people never get to remove all the officers from government at once. So if they want something to happen, they have to vote for it again and again — for the House, the president, and the Senate. Fleeting majorities, animated by temper or whimsy, can therefore dissipate before a full change in government is made.

There is also a geographical mediation, which has of late come to vex progressives. This is embodied in the Senate, where apportionment is equal among the states, regardless of population. It also exists in the House, where districts are geographically bound. This means that simple numbers are not enough to rule. Majorities must be broadly distributed across the country and by implication include a correspondingly large number of factions.

The filibuster in the Senate is an extraconstitutional form of mediation. At first blush, it seems like an anti-democratic instrument, but in practice it merely raises the threshold for majoritarian action. The logic behind it is that a majority in the Senate need not speak for the national interest, and so the minority, if it is sufficiently large, should be able to block certain actions. The courts serve a similar function, impeding majoritarian action insofar as it violates the common law that has been built up around the Constitution.

Democracy contains within itself the seeds of its own destruction. Namely, the masses are prone to being overwhelmed by fractious and even violent passions.

What these mediating elements do, in sum, is empower the majority to rule only in certain conditions. This is consistent with a view that goes back to ancient Greece, that democracy — like all pure forms of government — contains within itself the seeds of its own destruction. Namely, the masses are prone to being overwhelmed by fractious and even violent passions, and can repurpose the tools of democratic government for unjust ends. The classical solution was to check majority rule with some kind of hereditary estate, but the Framers rejected this, and instead used constitutional instruments to mediate public opinion.

In my judgment, this suggests that real question lurking behind any discussion of constitutional overhaul: Were the Framers too skeptical of the capacity of the mass public to rule in accordance with the dictates of justice and virtue? It is not just enough to complain that the Constitution impedes righteous actions from happening. One must go on to claim that, absent such restrictions, the people would govern righteously.

Do advocates of soup-to-nuts constitutional reform really believe that? Because I surely don’t.

Wilson once spoke of a national interest that had come to be formed within the nation, which had not existed at the time of the Founding. America had finally become one people, he said, capable of expressing a public sentiment that should govern politics. But I think he was fooling himself. The best description of the nation was and still is Federalist No. 10, where Madison delineated a number of factions that compete against themselves, often confusing their own self-interest for the public interest.

When I look at America in 2018, I see a country where a wide swath of people are uninterested and poorly informed, unaware of even the basics of civics to know how our government works, and unwilling to dedicate the time necessary to learn. I see the special interests that finance politics, employing campaign contributions, lobbying, and other subtle crafts to take advantage of public indolence for their own purposes. I look at the ideological poles, where citizens are more engaged. That is good, but it is also at the extremes where I see intense hatred of their ideological opponents. If granted total power, would one side criminalize the other? Would the broad middle, in its laziness and ignorance, actually let them do it?

If, granted total power, would one side would criminalize the other? Would the broad middle, in its laziness and ignorance, actually let them do it?

Where is the “virtue and intelligence” of which Madison spoke in Federalist No. 49? I do not see it. And the thought of reducing constitutional impediments to democratic rule gives me chills. As frustrated as I am sometimes by the glacial speed at which our government operates, I do not believe that making it easier for majorities to act would increase the likelihood of good government in the United States. Quite the opposite, I fear.

That’s not to say I oppose reforms. There are a lot of changes I advocate. For instance, I favor a redesign of the filibuster. I favor strengthening party organizations, which are essential to the democratic accountability that Cooper is striving for. I could get behind an increase in the number of representatives in the House. And I support certain types of gerrymandering reform.

But these reforms are relatively modest; they would tweak the way public opinion is mediated, rather than do away with it altogether. I still think we require ways to temper and control the rule of the majority, which remains the most fearful power in a republic such as ours.

This article was first published on National Review on 29 January 2018.

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America’s Constitution is terrible. Let’s throw it out and start over

(By Ryan Cooper)

The American Constitution is an outdated, malfunctioning piece of junk — and it’s only getting worse.

When written, the Constitution made a morally hideous compromise with slavery that took a war and 750,000 lives to make right. And while its basic structure sort of worked for awhile in the 20th century, the Constitution is now falling prey to the same defects that has toppled every other similar governing document the world over.

The truth seems clear: America is going to have to overhaul its basic structure of government, or eventually it will fall to pieces.

The major problem with America’s Constitution is that it creates a system in which elections generally do not produce functioning governments, and there is no mechanism to break the deadlock (like calling snap elections). Most of the time, control of the House, Senate, and presidency is split between the two parties in some way. Bipartisan compromises to keep government functioning used to be common, but are near-impossible anymore due to extreme party polarization. So as Michael Kinnucan points out, during divided government “there is de facto no legislative body.”

This is getting worse over time. Even with unified control of government, a party now only gets one big law per year through the reconciliation process. To actually govern in a way that would be normal for any other country, it takes unified control of government plus a Senate supermajority of 60 votes to get past the filibuster — something that has happened only three times since the Second World War. If Democrats take control of either the House or the Senate in 2018, we are likely in for even fiercer partisan combat and high-stakes standoffs. It’s a ratchet that tends to end in constitutional collapse.

To fix the problem, America should aim to make itself more like a proportional parliamentary democracy, by far the most successful and road-tested form of government. Here are a few options:

1. Get rid of the Senate filibuster. This would at least allow a party that got the presidency plus both houses of Congress to govern, and could be passed by a simple majority vote in the Senate. However, that sort of unified control only happens every six to 10 years or so, so this reform would only be periodically useful.

2. Radically change the way House members are elected. One major engine of political extremism in America is the partisan drawing of district boundaries. The United States has the most entrenched two-party system in the world, partly a result of “first past the post” voting, and partly because the parties have locked themselves into place behind enormous legal barricades to third parties.

Worse, the ironclad two-party system has proved to be highly vulnerable to an extreme right-wing fringe that protects itself with gerrymandering and other cheating tactics. Where in any other country the 15-20 percent of the national population that makes up Republican primary voters would have their own small party, instead they now own one out of two parties.

As the folks at Fair Vote demonstrate, one clever way to solve this problem would be to change the way House members are elected. Instead of drawing one district for every representative, make each district have three seats, allocated by a ranked-vote system. Districts would still be geographically contiguous, but much larger and proportionally represented. (For example, Louisiana would go from having six congressional districts each represented by one person to two districts that each have three representatives.)

You can see how this would allow for more than two parties to hold seats in Congress. You’d no longer have to win a congressional district majority — coming in third place would be enough to win a seat. That removes most of the possibility for gerrymandering, and gives representation for partisan minorities even in slanted regions like Alabama or New York. Thus, almost everyone is represented by someone.

And while we’re at it, let’s change House elections from every two years to every four years. American lawmakers need time to actually govern, and should not be perpetually seeking re-election.

3. Neuter the Senate. The Senate is an odious, undemocratic institution in which senators representing about 11 percent of the population can filibuster a bill or those representing about 16 percent of the population can have a majority.

The Constitution places high bars to changing the Senate, stipulating that no state can be deprived of its representation without its consent. However, it might be possible to pass an amendment making the Senate a House of Lords-style institution without real power. Senators could still be elected, but not be able to pass a binding vote on legislation.

4. Elect the president from the House. The point of “separation of powers” was to create a check on tyranny, but it has ironically worked to increase tyranny and undermine democracy. The separate executive branch is a major factor behind the rise of the lawless imperial presidency in the United States, and most other American-style constitutions fell apart due to standoffs between the president and legislature.

In normal countries, the executive is simply part of the legislature. Such a system does not create a single powerful figure running the state who can also claim separate democratic legitimacy against the legislature. If the president were elected from the reformed House, the dangerous standoffs created by divided government would not happen. Instead, the leader of each party would be the implicit presidential candidate during each election, as happens in parliamentary systems.

5. Throw the entire Constitution in the garbage. One of the biggest problems with the Constitution as written is it makes changing anything nearly impossible. Other countries regularly ditch or overhaul their constitutions to deal with new problems — and even America has done so in the distant past. When the first stab at a U.S. Constitution proved totally unworkable, Americans of the day didn’t fuss around with stipulations that “the Union shall be perpetual.” Instead they threw the whole thing out and started from scratch.

When it comes to major reform, I reckon this is the most likely actual possibility. One of these days, a standoff will come to a head, and will lead to some kind of total breakdown. Legal mechanisms like a constitutional convention are completely untested and would probably create such explosive controversy that we’d effectively end up with a new constitution anyway.

Make no mistake, a constitutional collapse would be a tremendously destabilizing and dangerous event, and raise a significant chance of insurrection, civil war, or a military dictatorship. But if and when it comes, it won’t be by choice — it will be because the ancient, janky mechanisms of the American Constitution simply failed. If we wish to avoid such a breakdown, moderating reforms like the ones mentioned above must be considered and adopted, posthaste.

This article was first published on The Week on 26 January 2018.

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The case against the American Constitution

(By Ryan Cooper)

Everyone agrees that the American Constitution is perfect, an exceptional document akin to holy writ. It is the absolute essence of freedom distilled, committed to parchment for the eternal benefit of all mankind… right?

Wrong. The Constitution is janky. It’s antiquated. It’s poorly designed. And it’s falling apart before our very eyes.

I’ll concede that there was indeed a time, hundreds of years ago, when the Constitution was, briefly and for its era, a halfway decent first stab at a workable democratic political system for the Northern states. (In the South, it organized one of the most brutal tyrannies in history.) Still, it only got close to systemically democratic with the Reconstruction Amendments, half of which were promptly ignored for 90 years. And even with those amendments, it still has three fundamental defects.

Now, you’re going to hear a lot from conservatives in the coming weeks during the confirmation hearings for Supreme Court nominee Neil Gorsuch about how wonderful the Constitution is, and how critical it is that Gorsuch stick to an “originalist” reading of this perfect document. But don’t believe any of it. The Constitution is massively, hopelessly flawed. To wit:

1. The Constitution is anti-democratic

Consider the Senate. The Constitution requires that this body vote to approve a law before it can reach the president’s desk. Each state gets two votes, even though states vary vastly in population; today, California has about 67 times the population of Wyoming, but the same two Senate seats.

Constitutional apologists justify this with a lot of piffle about how the Senate is supposed to be the “cooling saucer” against the hot-headed House of Representatives. (Historically, this meant “filibustering anti-lynching bills.”) In reality, the Senate is the product of a bare-knuckled political power play by the smaller states as they existed in the 1780s. They wanted unfair over-representation as the price of joining the new nation, and they got it.

A decentralized government that delegates much authority to national sub-regions is one thing. But there is no possible justification for allowing certain depopulated states to wield dozens of times more influence than others over national policy due to the sheer coincidence of rapidly shifting population distribution.

The House is better, but not by much. The Constitution allows state legislatures to draw their own congressional district boundaries. (In this, America is virtually alone among democratic countries.) In many states, that means self-interested politicians drawing the lines that control their electoral destiny. Is it any surprise that cheating is rampant?

Today, Republicans have gerrymandered themselves a roughly 7-point handicap in the House. North Carolina Republicans cheated so badly it was rated “not only the worst state in the USA for unfair districting but the worst entity in the world ever analyzed by the Electoral Integrity Project.”

Finally, the Electoral College. I’ve written about this before, so I won’t belabor the point, but suffice it to say that a system that allows one candidate in a two-candidate national election to lose the popular vote by a 4-to-1 margin and still win is bad.

2. The Constitution’s separation of powers is a boondoggle

In a parliamentary democracy, the executive power is exercised by the winning coalition in the legislature. That’s how it should work. In an American-style presidential democracy, the executive is elected separately. The idea here, as everyone learns in civics class, is to separate powers to protect the people from government tyranny, as each branch will guard its own power. This doesn’t work at all, as we are all right now getting ground into our faces under President Trump.

The executive branch has become steadily more powerful basically since the moment the Constitution was implemented. Since FDR’s day it’s gotten much more marked, and in the 1970s scholars began to write about the “imperial presidency.” This development is, in part, because of the separation of powers. A more complex and urbanized society means governance needs to be agile, and deliberative legislatures are not well suited for that at the best of times. On the contrary, increasing partisan polarization and a bicameral legislature has meant Congress is often helpless to do anything at all, so the executive has often stepped up to fill the void. Polarization has further eroded the logic of separation, as members of Congress look the other way when it’s their party’s president accumulating power. A hypertrophied executive is common around the world, but it’s palpably much worse in presidential systems without their rooting in the legislature or the ability to call snap elections to resolve political deadlock.

Trump has already gone further than any president since Andrew Jackson, directing Customs and Border Patrol to disregard federal court orders, and reportedly even U.S. Marshals (the enforcement arm of the judiciary) too. But he builds on a long tradition of failure rooted in our janky founding document.

3. The Constitution is basically impossible to fix

The Constitution is almost impossible to change, requiring a two-thirds vote in the House and Senate and ratification by three-quarters of states. (Or a constitutional convention, but that has never been tried). It has been amended many times, but the only ones that made really profound changes to the basic structure were the Reconstruction Amendments, which could not have happened outside the context of the Civil War and the occupation of the defeated Confederacy. The last amendment to even moderately change the fundamental structure of American government was passed in 1913 (the direct election of senators). So not only does the Constitution have a bad design, it can’t realistically be fixed — and it’s getting even harder as partisan polarization deepens and the consensus across so many states becomes further and further out of reach.

Now, none of this is to say that everything about the Constitution is bad. The Bill of Rights is pretty good, especially for its time (though for my money the South African version beats it handily). But the basic political mechanics the Constitution sets up are utterly stupid. Literally every other country that set up an American-style Constitution collapsed eventually. A proportional parliamentary system would be far superior.

This article was first published on The Week on 1 February 2017.

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No, America’s Presidential System is Not Doomed by Bhanu Dhamija

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