“They fuck you up, your mum and dad.
They may not mean to, but they do.”
— Philip Larkin, “This Be The Verse”
This blog is dead as a doornail.* But because, over a year ago, I made a case against Hillary Clinton as the Democratic nominee (and in favor of third-party voting if she was), I thought I’d come back for one more visit. Here’s what I wanted to say, on this election eve: Larkin’s observation holds for countries, too. Whichever way this thing goes, one thing is clearer than it has ever been before: the Founding Fathers fucked us up. They didn’t mean to, but they did.
I am not blaming them. They were inventing something new; they did the best they could. Their clearest model was antiquity–the pattern of democracy running to tyranny on the one hand, or chaos on the other. They had read Locke, so they believed that power derived from a social contract among equals. They had read Roman history, so they feared tyrants. But they had also read Hobbes, so some of them worried that maybe people would be at each other’s throats without a strong, civilizing government. And most of them were decidedly on the well-to-do side, and a bit suspicious of their lessers–even though they wanted to derive legitimacy from them. In short, they had a lot of theory, few models, and a handful of somewhat contradictory worries and beliefs.
One can confidently say that the Founding Fathers fucked us up in a number of ways. But the clearest way, it now seems to me, was in adopting a system of “checks and balances.”
I will pause so that the patriotic reader may be revived with smelling salts, as needed.
The theoretical underpinning of our constitutional system is that by having “three branches of government” and “a division of power between the states and the federal government” and “a representative democracy, or republic” and an electoral college–all that excellent stuff we learned about in civics/PoliSci 101/law school–the various institutions at play can “check” each other, so that none becomes too powerful, and both tyranny and mobocracy are thus avoided. Moreover, joining the states together defeats partisanship: a large country could never be dominated by factions or parties, because
The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.
Madison, for his part, certainly understood that partisanship was all but inevitable in human affairs:
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.
He also foresaw that you could not rely on the “great men of history” to beat back partisanship and corruption–and he even understood the problem of concentrated, direct benefits and diffuse, indirect costs:
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
Yet, even understanding this–even as the great political genius of his age–Madison was not quite able to see (because he was operating in the abstract, without real-world data) what is now plain: cross-institutional checks, as established in the Constitution, don’t work. A divided government doesn’t work. What actually works (better, anyway) is–wait for it–partisanship. Naked, ugly factionalism.
Hear me out.
Suppose you support Hillary Clinton for president. You likely have something to fear whether she wins or loses. If she loses, of course, Donald Trump (someone you find abhorrent) becomes President, with all of the enormous powers of the federal executive at his command. He will be the one to fill the political posts in every cabinet department, from ICE to the Civil Rights Division of the DOJ to Interior to Health and Human Services. He will have the power to nominate Supreme Court Justices–perhaps as many as three or four. He will have his finger the the metaphorical nuclear “button”–and even if the generals talk him out of that, he’ll be commander-in-chief of the most powerful military in the world. For at least four years.
On the other hand, even if Clinton wins, she will be remarkably powerless to enact much of her agenda. While she, too, will be at the helm of a powerful military and the entire executive branch, she will be stuck with a Republican-dominated House of Representatives–and maybe Senate, too. She will not be able to pass meaningful legislation during her “honeymoon” period, and she may not even be able to get a Supreme Court justice confirmed.
The picture is similarly gloomy if you are a Trump supporter. If he loses, Clinton takes charge of the government and puts in place her flacks, who are loyal to her. A secretive and paranoid politician will run a secretive and paranoid White House, probably mostly to benefit Marc Rich. She’ll make bad decisions about who to invade and how to fight ISIS; she will make bad deals with bad actors who get the better of her, whether in international relations or in trade. Maybe she even gets a friendly Senate and nominates a bunch of gun-hating nanny-staters to the Supreme Court.
But even if Trump wins, how is he supposed to get anything done? It’s unlikely he’ll have the votes to “build that wall,” or to spend what it would take to literally round up every illegal immigrant and deport them. The Senate also has to approve treaties, so he can’t unilaterally be the savvy deal-maker he claims to be. Also, while he can appoint political appointees to the various cabinet departments, he’s still stuck with the civil service, who a resistant to change. And as for excluding Muslims? Well, a large number of federal judges will likely thwart him at every turn. In short, he’s more stuck with the status quo than his ebullient, “we’re gonna make it beautiful” campaign lets on.
Meanwhile, what if you would actually like to support someone else this season? What if you were one of the large number of Bernie Sanders supporters? Or suppose you really believe in freedom and would like a libertarian? You will be told (correctly, given the constraints of our system) that your vote is at best wasted, at worst a “spoiler” the less-awful of the two mainstream candidates.
And all of this flows inexorably from the mechanisms that the Constitution puts in place–or fails to put in place. It flows from the inherently and intentionally non-representative Senate explicitly commissioned to check and thwart the House, as well as the winner-take-all elections thereto. It flows from the Constitution’s silence on how congressional representatives should be elected and allocated within a state, leading Congress to ultimately mandate single-member, winner-take-all districting. It flows from the decision to allow state legislatures to determine how to draw up and allocate congressional districts, so that many legislators wind up in gerrymandered safe seats where the danger to their political ambitions comes from an aggressive primary challenge, not from another party. It flows from the decision to stagger elections, so that there are poorly-attended “midterm” elections dominated by party loyalists. It flows from the fact that the House and Senate make their own procedural rules. It flows from the Constitution’s attempt to split the baby by having the President nominate Supreme Court justices and other important officials, with the “advice and consent” of the Senate. And, perhaps most importantly, it flows from the creation of a powerful, nigh-irremovable executive who’s elected once every four years, separately from the legislature, in a nationwide winner-take-all process.
(You could also add the meta-flaw: that the Constitution is far too difficult to amend, and so all the other problems are as good as set in stone.)
These procedures, many of which were intended to create “checks and balances” between the institutions, have worked only too well. On the one hand, Congress famously “can’t get anything done”–particularly post-1995, when Newt Gingrich had the brilliant insight that gridlock and scorched-earth resistance could actually be successful political strategies. This is particularly the case now that many congressional districts have been gerrymandered to ensure that party loyalty and ideological rigor are a better strategy for getting elected than compromise and openness. President Obama has chided Congress for “not doing the work of the American people,” but that rhetoric is weak, and the incentives not to cooperate are strong.
At the same time, the executive has arrogated more and more power to itself over time–partly in direct response to Congressional stonewalling. And while liberals might cheer when President Obama takes unilateral action to allow various categories of deemed-worthy illegal immigrants to stay in the country and work legally(ish) via “deferred action,” they might be less thrilled by, say, his unilateral military invasion of Libya without Congressional authorization.
Can he do that? Who’s to say he can’t? Congress can’t really do anything about it–partly because any penalty they might impose on him as punishment for overstepping his bounds is probably something they’re already doing as part of planned gridlock; partly because Congress can do hardly anything on a bipartisan basis, let alone something that takes moral courage; but mostly because the Republican Party hopes to win the presidency again itself one day, and they want it to contain as much power as possible, given that Congress is dead.
Finally, the judiciary, which until recently had remained functional and was seen as semi-apolitical, seems in imminent danger of withering away in a Senatorial pissing contest, perhaps regardless of who wins the presidency. And, indeed, sooner or later someone will realize that the Senate could easily hold hostage, not just the Supreme Court, but the lower courts as well, and for that matter key Cabinet posts.
Moreover, Article III, which creates the judicial branch, is intentionally vague as to exactly what powers the third branch has over the other two. The Founders were suspicious of national courts and federal judges, and so, to avoid triggering their suspicions, Madison carefully drafted an article that tells you next to nothing–not how many justices there should be, nor how many or what kinds of lower courts, nor, crucially, what the scope of the courts’ authority actually is. It’s a subject of tremendous debate, and there’s a whole legal doctrine devoted to courts’ avidly avoidance of telling the other branches what to do.
Yet that is not to say that the courts have no power–federal judges are appointed for life (one of the few things Article III says clearly) and have tremendous authority over many of the issues that matter to people’s lives, like policing, abortion, and free speech–not to mention more quotidian issues like trying to get your money back after a fraud.
So we have a useless legislature where the incentives are strong to block nearly everything and a judiciary that wields a lot of power over people’s lives, but has no clear mandate to rein in the other branches and in any event is currently a target on the political battlefield. That leaves an executive that has real power (albeit thwarted in its usefulness), and the current state of politics: once every four years we work ourselves up into a spectacular lather about a single election, which will determine who gets to be the god-king-and-emperor-of-the-cannons-whose-legislation-shall-not-pass-but-who-gets-to-nominate-judges. This is extraordinarily fraught, as the consequences are perceived to be staggeringly serious. Lose, and Your Voice Will Not Be Heard for at least four years in the executive branch, and perhaps for decades to come in the judiciary. No wonder we become susceptible to paranoia and apocalyptic thinking. The country is constantly on the edge of handing over the entirety of what little governing power remains to a closet Stalinist and possible Muslim Brotherhood dupe, or else to a racist, sexist megalomaniac with poor impulse control and a fetish for Russian oligarchs. IT’S ALL VERY HIGH-STAKES, YOU GUYS. (Text here to donate to my campaign.)
It doesn’t have to be this way. Other countries don’t do this to themselves. Advanced democracies mostly use a parliamentary system, in which the executive arises out of the legislature. That legislature is often elected through multi-member districting and/or proportional representation, so that more than two parties can emerge. Consequently, voters have more options, and even the major parties must sometimes form coalitions with their ideological neighbors to get things done.
But, crucially, because all the institutions are in the hands of the same party (or coalition), there is no gridlock. One party has power and passes and enacts legislation. If the ruling party is managing things really badly, the other parties (and/or a faction within the ruling party) might well gang up on the existing government and throw them out, or force a new election. (And nobody has to wait four years for it to happen!) On the other hand, a corollary of this is that when leadership is working, it need not be subject to the artificial term limits that create such obvious turmoil in our own system every four to eight years. So, for example, Margaret Thatcher was Prime Minister for 11 years, and Tony Blair for ten. In Australia, John Howard was PM for 11 years.
A parliamentary system thus neatly answers several things Americans hate about their own political process: it abolishes gridlock; it makes the head of government more accountable and a good deal less important as an individual personality; and, most crucially, it allows for more and better representation of a diverse array of viewpoints.
This last part is really something I would urge Americans to think about. We have always been a sprawlingly diverse country and are getting more so. Whomever you’ve voted for by the end of tomorrow, on Wednesday morning you’re going to wake up next to people you disagree with in profound ways. Despite mouthing words about tolerance, equality, and pluralism, however, the knee-jerk American response to encountering a disagreed-with viewpoint is, typically, that it must be squashed. And in a winner-take-all, two-party system, this makes sense: it’s squash or be squashed out there. There’s no room for the humanity of the people you disagree with.
But in a multi-party parliamentary system, where everyone from Black Lives Matter to gun nuts to greens to People With Strong Opinions About Abortion to our dear friends the libertarians could get some amount of direct representation in their government, you wouldn’t have to choose between the Rock Party and the Hard Place Party. And you also wouldn’t have to get worked up into such a lather about defeating your enemies. If your friend was an unrepentant BernieBro, or your aunt felt she couldn’t vote for anyone but a sincere Christian dominionist… there’s room for that. Those people would not be “wasting their votes” or “helping Clinton/Trump get elected.” They’d just be… voting.
And by doing so, they’d actually be involved in a great patriotic project. They’d be preventing complete domination by, and antagonistic gridlock that plays into the hands of, two parties nobody likes very much, but that we nonetheless feel we have to get all sweaty about every few years.
In the end, I think Madison was quite right that partisanship is inherent in human nature. Where I think he and the others went wrong was in failing to use that inherent tendency to factionalize as the check on power, as a parliamentary system does. Instead, they tried to give multiple institutions the power to check on each other and hoped against hope that, for vague reasons, partisanship would be kept at bay. That didn’t work: we got parties anyway, and the checks and balances just gave them tools to abuse each other with. And in the process, the people got sucked into the (zero-sum) game, until you could hardly turn on the TV or log onto your favorite social medium without somebody declaring that 47 percent of Americans are morons and evildoers who must be crushed into submission.
The Founding Fathers fucked us up. But, contra Larkin, I don’t believe that it’s inevitable that “Man hands on misery to man./It deepens like a coastal shelf.” We could break out of it if we so chose.
Candidly, it’s time to rethink the Constitution. We venerate it, and rightly so–it was a fine first draft of democracy. But two hundred years would take a toll on anyone: it’s done its work, and it should be laid to rest.
This blog is dead as a doornail.* But if I can end it on a last radical note: let’s have a convention. Let’s start over again. This isn’t working; everyone hates it; and the fear that something worse would come out of a constitutional convention seems to me to be overblown and without adequate historical or theoretical justification–a spook, created by those who don’t really like the people, except when they are The People, graven in marble on a dead monument.
Let’s start over.
Let’s start over.
*I might have been inclined, myself, to regard a coffin-nail as the deadest piece of ironmongery in the trade. But the wisdom of our ancestors is in the simile; and my unhallowed hands shall not disturb it, or the Country’s done for.