The Constitution Isn’t the Solution, It’s the Problem

With our country descending ever deeper into political chaos, now may be the time to ask whether our Constitution and the system of government it establishes are as well-crafted as we are taught to believe. As it turns out, the Founders’ design, while admirable for a first attempt at creating a modern democracy, is nevertheless deeply flawed. The seriousness of these flaws first became apparent less than a century after the republic’s birth when the North and South were torn apart by a bloody Civil War, a conflict caused by a dispute over slavery but left unresolvable because of the Constitution’s failure to unambiguously grant sovereignty to the nation over the states in matters so critical to the nation’s character.

While the republic was restored to peace and union after the war, harmony was achieved in large part by the national government refocusing on trade, foreign policy, and Western expansion. Reconstruction was soon abandoned, and states allowed to pursue their domestic priorities on their own with little interference from the national government. But this period of retrenchment was short-lived. With the Great Depression, the World Wars, the rise of Soviet communism, the Civil Rights Movement, and a globalizing economy, the role of the national government grew ever larger in both foreign and domestic policy. While Tip O’Neill was famous for saying “all politics is local,” at the time he said it in the 1980s one could argue that our politics, like our economy and our people, was becoming distinctly national. Americans were ever less tied to the states or regions of their birth, instead moving freely about the country in search of opportunity. And the once distinctive cultures of the states were increasingly being absorbed into a shared national culture broadcast across the country on television screens and through the internet.

The nationalization of our culture and economy and the expanded role of the federal government exposed serious weaknesses in our Constitutional system. The Founders built that system on three pillars: federalism, separation of powers, and republicanism. Their goal was to create a government that was responsive to the will of the people but also incorporated strong protections against tyranny, especially the tyranny of an irresponsible majority the Founders worried might be empowered in a national legislature. By dividing sovereignty between national and multiple state governments, with the powers of the national government constrained by precise enumeration, federalism helped limit the overall power of the national government. Separation of powers likewise was believed to produce a system of internal checks and balances, which would theoretically prevent any part of the national government (and especially the legislature) from becoming too powerful. Republicanism was the primary defense against rule by the mob as it distanced the masses from direct control of the government, placing trustworthy elites as buffers between the people and the levers of power. The particular combination of federalism, separation of powers, and republicanism adopted by the Founders, however, creates a national government only weakly accountable to the people and prone to gridlock, inefficiency, and internal conflict, problems that have become more serious as the role of the federal government has grown.

The central problem with American federalism and separation of powers is that together the two fragment the government’s power, dividing it between state and federal governments and, within the federal government, between the executive, the two chambers of the legislature, and the judiciary. While such division of power might be workable if powers were appropriately defined, the Constitution itself suffers from too precise a definition of powers in some places and too little definition in others. The powers of the national legislature are enumerated in great detail, while the powers of the President and judiciary are described in vague and general terms. The division between national and state power is more implied than specified, the assumption (made explicit by the Tenth Amendment) being that whatever national powers aren’t specifically written into the Constitution are reserved to the states or the people.

The great attention paid to the powers of the national legislature in the Constitution and the cursory description of the powers of the executive and judiciary no doubt reflects the Founders’ belief that the legislature would be the dominant branch of the government. In fact, the description of the legislative powers serves doubly as a description of the national government’s powers, or at least the vast majority of those powers. The Constitution is often interpreted as producing a political system in which the national government limits its activities to foreign policy and regulation of economic activity between the states, with other domestic policy left to the states. Of course, many believe that our government would be better if it rigidly adhered to this division between state and national power. But such a rigid division of powers is impractical. Many domestic policies are most efficiently funded and administered at a federal level. Not surprisingly, therefore, almost from the beginning, the Constitution’s Commerce Clause has been interpreted to allow the federal government a more expansive role in domestic affairs. And starting with the Great Depression, the internal functions of the national government have steadily grown to match or even exceed the external, with health, retirement, education, and other social programs absorbing more of the federal budget than the military and diplomatic functions. In fact, as our economy operates not just at a national but also a global scale, domestic and foreign policy are increasingly difficult to disentangle. We are not states operating within a nation as much as we are a nation operating within a community of nations.

Since the Civil War, the federal government has also played a growing role in protecting the fundamental liberties of the people within states, a role appended to federal power by the Fourteenth Amendment. While the expansion of federal domestic power enabled by a liberal interpretation of the Commerce Clause and by the Fourteenth Amendment is, for all the objections of conservatives, essential to a well-functioning and culturally cohesive modern nation, the Constitutional foundation underlying that expansion is at best flimsy. A conservative leaning Court can easily revert to a more restrictive interpretation of the Commerce Clause, leaving much essential legislation vulnerable to judicial reversal. And while the federal government’s duty to guarantee the people’s rights is indisputable from the wording of the Fourteenth Amendment what exactly those rights are is anything but clear. Again, it is the Courts that fill the void by interpreting and re-interpreting the Bill of Rights in ways that too often seem both arbitrary and unconvincing. Conservatives balk at decisions that grant rights to abortion and to homosexual marriage, while liberals are alarmed by opinions that make corporate campaign contributions the equivalent of an individual’s free speech or prevent effective regulation of firearms. Essentially, American federalism gives us a national government that, with a restrictive interpretation of its powers, is weaker than it needs to be but, with an expansive interpretation, finds its powers overly vulnerable to the vagaries of Supreme Court decisions.

While federalism leaves the national government either with too little power or with sufficient but tenuously established power, separation of powers divides whatever power the national government does retain between competing bodies, with no clear mechanism to resolve the conflicts that necessarily arise between those bodies. While long experience in many nations suggests that an independent judiciary is essential to preserving a strong democracy, the separation of legislative and executive powers is less certainly beneficial and may, in fact, be a merely theoretical construct that is impossible to maintain in practice. Parliamentary democracies have fused legislative and executive powers, with the government (the executive) formed by the party that holds the majority in the legislature and therefore part of the legislature and ultimately subservient to it. Parliamentary democracies (at least those whose systems of representation tend to result in majority rather than coalition governments) are able to act efficiently and coherently, with legislative initiatives and executive policy closely coordinated.

Presidential democracies, on the other hand, create an artificial — and somewhat muddled — distinction between writing the law and executing it. Despite the Founders’ fear that the legislature might be strong and irresponsible and the President responsible but weak, the exact opposite occurs. As the government grows larger, executive agencies acquire extensive legislative power through their regulatory functions. While the writing of laws is important, their execution often determines a great deal of their character and force. And ultimately all material government power — the power of the military, the power of the prosecutorial agencies, and the powers of the regulatory and administrative organs of government — is in the hands of the executive. As the functions of government have gotten more expansive, the power of the President has steadily increased, while the power of Congress steadily declined. Some of this has to do with the political advantages the President has by dint of being the only official elected by the entire nation and by the prominence of his office. But much is merely the consequence of the President controlling the vast executive bureaucracy which holds all the government’s material power.

The weakness of the legislature compared with the executive is exacerbated in the American system by bicameralism. The Founders split the legislature into two houses for two primary reasons: first, their commitment to federalism meant they wanted the states represented as sovereign bodies within the legislature and second, their fear of irresponsible government meant they wanted a more elite upper house to check the possible excesses of the popular legislature. Senate terms were long (six years) and staggered (only a third of the seats coming up for appointment — or, since the Seventeenth Amendment, election — every two years), making the Senate slow to change and therefore a force for stability as well as elitism, both stability and elitism being seen as helpful in moderating the passions of the popular legislature. The Founders recognized that dividing the legislature into two houses and having different methods of electing the houses would make the legislature weaker, but they also assumed (wrongly) that the President would be far weaker than the legislature. As Federalist 51 explains it: “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.”

By splitting the legislature into House and Senate and dividing the Senate into three electoral classes — the Founders created a legislature that is often divided by party and also difficult for the people to change quickly through elections. This means a legislature that is rarely unified enough to effectively counter an executive who overreaches and that is resistant to rapid change by election to create the needed unity. Its weakness relative to the powerful executive is increased by “further precautions” such as the fact that its laws can be vetoed by the President, with low likelihood that the veto can be overridden. Impeachment and conviction of the President — created as a defense against presidential abuses of power — is nearly impossible given the high level of support required in the Senate and the unity of purpose necessary between House and Senate. Congress’s power to oversee and investigate the executive is tenuous as it is derived more from tradition than anything written into the Constitution, and Congressional attempts to subpoena information from the executive are easily thwarted by simple refusal to comply, buttressed by claims of executive privilege. With the actual prosecutorial power in control of the executive and appeals to the Courts slow and uncertain, Congress’s ability to effectively counter executive abuse is limited and dependent almost solely on the President’s willingness to cooperate. While technically Congress could defund the executive, to do so requires defunding the government, an impractical solution that can be effected only by inflicting great pain on the entire nation.

Separation of legislative and executive powers therefore sets up competition between the executive and legislative branch but leaves (contrary to the Founders’ expectations) the executive far more powerful in practice than the legislature. The imperial presidency that has evolved over the years is the direct result of this structural imbalance in a growing national government with extensive regulatory and administrative duties. And while the presidency becomes ever more powerful because of its unitary nature and the vast material power it controls, Congress becomes ever more weak and ineffective because of its typical disunity and its restricted powers. Gridlock and inaction are the norms in Congress now, with Congress’s role often limited to either advancing or obstructing an agenda primarily determined by the President.

Of course, there is a third branch of government that is often called upon to resolve conflicts between the legislative and executive branches, between the state and national governments, and between the laws or actions of the federal government and the Constitution itself. Since Madison v. Marbury, the Supreme Court has been recognized as the arbiter of all such Constitutional conflicts, even though the power of judicial review is not mentioned in the Constitution and is therefore often considered suspect. But even if judicial review is accepted as a legitimate function of the Supreme Court, the decisions of the Court, relying at times on the opinions of as few as five justices and often seemingly little connected to the text of the Constitution, are always open to dispute and subject to eventual reconsideration by future Courts. And as the Court has little material power to enforce its decisions, its dictates are effective only to the extent those to whom they apply act on good faith.

But the shaky foundation upon which judicial review rests is not the largest problem with the Court’s role. More insidious is the fact that, as long as people do accept the Court’s decisions as final, the power of the Court to determine what can or cannot be done within the nation is great. The Court becomes excessively powerful, transforming into a quasi-legislative body that plays in many respects the role the Founders believed the Senate would perform — that of an elite appointed body that would ensure responsible application of the Constitution and be a check against an overreaching majority. But with the Court performing this role of ultimate arbiter of Constitutional law and acting as the final check on majoritarian abuse, the power of the actual legislature is further diminished — and a strong incentive is created for partisans to attempt to fill the Court with justices sympathetic to their partisan positions. In fact, this is exactly what has happened in recent years as the filling of Supreme Court seats has become partisan war, with the Court now viewed by many as hopelessly biased and prone to judicial overreach. This threatens the legitimacy of the Court and potentially undermines the ability of the Court to act as the final arbiter of Constitutional disputes — a role that is essential even as its Constitutional grounding is debatable.

The Founders, challenged with creating the first modern democracy and unfamiliar with a government where the people had full control without a monarch or aristocracy to overrule their excesses, feared they might be enabling rule by mob or faction. So rather than creating a popularly elected national parliament that was clearly the supreme institution of government, they did their best to constrain the popular legislature, limiting its powers and surrounding it with a Senate, a President, and a Supreme Court that in various ways could check its activity. The Founders’ stated goal was to weaken a popular legislature they feared would be too strong — and in retrospect, we can see they succeeded beyond their expectations. In the end, they created a system where the Senate and Supreme Court can handcuff the House, leaving a power void most easily filled by an imperial President who is willing to aggressively push his advantages.

All of this might be salvageable if, in the end, the government remained accountable to the people. But the Founders, again because they feared rule by mob and faction, developed a peculiar type of republicanism that, in practice, leaves the people with diminished control over their government and therefore makes the government less accountable to the people. To the extent that republicanism simply means representative democracy, the Founders’ system is sound. Direct democracy is impractical in a large polity, and having representatives whose time and energy can be dedicated fully to the difficult challenges of legislating and governing is wise. A typical parliamentary system provides an excellent example of how effective representative democracy should work. In a parliamentary system, the legislative and executive functions are fused within a parliament composed of the elected representatives of the people. Those representatives make law and also form the government (the executive), which is made up of members of parliament selected to fill the ministerial roles. Parliament — or at least the majority that controls it and forms the government — is therefore clearly accountable for all legislative and executive actions of the government. The people can, on a regular schedule, evaluate the performance of the government and, based on that evaluation, either vote to retain it or replace it in its entirety through a single election. Usually, parliamentary systems have some mechanism for an election to be called early if confidence is lost in the government, giving the people yet another chance to evaluate and either retain or replace their representatives and government. While there may be an upper house or courts that also exercise some check on the representative body, their roles are usually limited and the real check on government failure or overreach remains the people’s evaluation exercised via the national election for parliament.

In Federalist 10, Madison contrasts republicanism (representative democracy) with pure or direct democracy, arguing in favour of representative democracy. In Federalist 39, he refines his definition of republicanism, saying “we may define a republic to be…a government which derives all its powers directly or indirectly from the great body of the people….” But the Founders (again motivated by fear of mob rule) allowed only one of the divisions of the government to derive its power directly from “the great body of the people” — the House of Representatives. All the other parts of the government derive their powers only indirectly from the people. Senators originally were appointed by state legislatures. The President was to be chosen by a college of electors convened especially for the task, who could, depending on the preference of the states, either be appointed by state legislatures or be elected by the people. Of course, judges were nominated by the President and confirmed by the Senate, leaving the people with a very indirect voice in their appointment. Executive officers were also chosen by the President and Senate, leaving the people and their House of Representatives out of the process. The Founders also staggered terms so that rather than changing the government all at once, different parts of it changed at different times and at different rates. The House could be changed all at once every two years (arguably too frequently to give it sufficient stability). The Senate changed slowly over three elections spanning six years, with a third of the body replaced every two years. The President could be replaced every four years. The Supreme Court, with justices appointed for life, typically could change completely only over decades, with the pace of change dependent on when justices resigned, were impeached, or died.

A divided government, with most of its officials chosen by means other than direct election and chosen at varying times, is by design not very responsive to the people. It is also not very accountable to the people, in part because most of the government is not directly chosen by the people, but also because when power is so divided, accountability is also divided and no single official or body is responsible on its own for the successes or failures of government. Of course, each official or body claims credit for success and blames others for failure, but clear accountability is hard to assign. A government that is unresponsive to the people, hard to change, and hard to hold to account is hardly a shining example of what democracy can and should be. But it is what the Founders left us.

There have over the years been some attempts to reform our republican system, but arguably these have only made things worse. With the Seventeenth Amendment, Senators became directly elected in all states. This does make the Senate more accountable to the people, much like the House of Representatives. In fact, the Senate no longer truly represents states as originally intended because voters, when choosing Senators, vote their own interest not their state’s interest. Instead, the Senate is a second representative body, but one with districts whose boundaries coincide with state boundaries and are therefore of vastly uneven sizes, leaving some Senate districts overrepresented and others grossly underrepresented. Rather than empowering the “great body of the people,” the Senate empowers people in small states and disempowers people in large states. Instead of preventing the dreaded tyranny of the majority the Senate makes possible something even worse: tyranny of the minority.

The Electoral College has also evolved over time. The original purpose of that body — to convene a group of respected and accomplished citizens to responsibly choose the most qualified candidate for President — was never really fulfilled. The Constitution leaves it to the states to determine how they choose their electors. Early on, many states simply appointed electors, without holding any popular election at all for President, a process that resulted in the state legislature effectively determining the state’s choice for President. Over the years, the popular election became standard and most states adopted the convention of giving all their electoral votes to the presidential candidate who received the majority (or a plurality) of the popular vote within the state. Because the Constitution gives each state one electoral vote per Representative and one per Senator, the Electoral College does provide the small states a slight advantage in choosing the President and creates the possibility that the winner of the election may not be the candidate who gets the majority of the popular vote nationwide. Even more significant, the “winner-take-all” approach for allocating electoral votes adopted by most states increases the risk that the most popular candidate nationwide could lose, as the results in a few closely divided states end up having disproportionate influence on the overall outcome. Rather than producing what the Founders intended — a deliberative body that would review the qualifications of all candidates for President and make a responsible choice — the Electoral College has simply become a wild card that can randomly cause the popular vote winner to lose the election.

There are other problems with the American system of representation and elections. Gerrymandering, voter suppression, and unlimited campaign funding all make the government less responsive to the people. The first-past-post system used for most elections makes no accommodation for the strength or weakness of either the winning or the losing candidate’s support. Parties other than the dominant two have little chance of gaining any power, in part because first-past-post tends to favour a two-person contest, but also because the lack of a formal opposition party and the lack of ability for a minority party to gain power through a coalition makes anything but a win meaningless. For all these reasons, the dominant party in the government is often not representative of the majority of voters, and the two major parties may not satisfactorily represent a large portion of the people. On top of these inadequacies of representation, the fact that the procedures for districting and managing elections are not defined in the Constitution and left to the states can produce inconsistency, unfairness, and maladministration in elections. A better Constitution would establish a more uniform approach across the nation. As it stands today, however, our electoral system is not terribly empowering to the people and, while we condemn failing to vote as irresponsible, in many ways not voting is rational behaviour. Unless one lives in a district where the election is closely contested, one’s vote or lack of vote is unlikely to affect the outcome of the election. And even if one is in a closely contested district where one’s vote does matter, the system itself limits the significance of one’s choice as the options presented are limited and often unappealing and, once in office, the winners are often unresponsive and unaccountable to those who placed them there.

The current situation in the United States is increasingly intolerable: Americans are frustrated by an ineffective Congress, by Presidents who rule by executive fiat, by Courts that wield too much power while retaining less and less legitimacy, by an electoral system that provides just two unsatisfactory options and can allow a minority to dominate the majority, by a nation deeply and seemingly irreparably divided along partisan lines, and by conflicts between the branches of government that are making a mockery of the checks and balances once thought to be so strong. We blame these problems on changes in our political culture — the flouting of norms, a decline in civility, the growing influence of money, the advent of more aggressive political marketing, a fiercely partisan media, and the venomous influence of social media. But while these factors may be making the situation worse, the underlying problem is not new, but as old as our Constitution. The structure of our government is deeply flawed and inadequate to the demands of a large and complex nation. The problems we are witnessing today have their root cause in an 18th century document applied to the challenges of a 21st century democracy. If there is any hope for American democracy to survive and avoid collapse into autocracy or another civil war, we must change our Constitution to something more in line with our modern needs. But there is one final flaw in the Constitution that we have not yet mentioned: the Founders made it extremely difficult to change. And so the very stability that has helped our democracy endure so long may now be the curse that forces its destruction.

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Life, liberty and the pursuit of happiness flourish where peace, order and good government prevail. 🍁 Pragmatic liberal. American by birth, Canadian by choice.

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617to416

617to416

Life, liberty and the pursuit of happiness flourish where peace, order and good government prevail. 🍁 Pragmatic liberal. American by birth, Canadian by choice.

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