Is Our Constitutional System Broken?

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Is Our Constitutional System Broken?

William F. Connelly, Jr.

Washington & Lee University

For Congress Project Seminar

Woodrow Wilson International Center for Scholars

Friday, September 17, 2010
Today we are, according to some political scientists and journalists, in the midst of a second civil war, characterized by off center, freak show, fight club politics, complete with a broken branch Congress.
In their 2006 book The Broken Branch Tom Mann and Norm Ornstein insist Congress is broken in many ways. Congressional politics, they argue, is characterized by (1) corrosive partisanship, (2) the permanent campaign, (3) confrontation rather than compromise, (4) a decline in deliberation, (5) gridlock more than legislative productivity, (6) dominance by the president, and (7) a lack of adequate legislative oversight. Partisan polarization and invective drown out serious and thoughtful deliberation. Campaigning trumps governing. The Senate has become more like the House. The executive has eclipsed the legislature, thus Congress is no longer the “First Branch,” as they maintain the Founders intended, because it has ceded too much authority to the President.
Journalist Ron Brownstein makes a similar argument in The Second Civil War. He abhors gridlock, preferring compromise over confrontation. Hyperpartisanship, he says, has “inflamed our differences and impeded progress,” causing “immobilization” and “stalemate.”1 Such polarization coupled with gridlock is “a recipe for alienation in large parts of the public.”2 We have “virtually lost the capacity to formulate the principled compromises indispensable for progress,” he insists, consequently “the costs of hyperpartisanship vastly exceed the benefits.”3 Brownstein sees only polarization and paralysis:
[O]ur politics today encourages confrontation over compromise. The political system now rewards ideology over pragmatism. It is designed to sharpen disagreements rather than construct consensus. It is built on exposing and inflaming the differences that separate Americans rather than the shared priorities and values that unite them. It produces too much animosity and too few solutions.4
Where have we heard this before? As Mann, Ornstein and Brownstein acknowledge, the problem has been with us since the Founding. So, too, has the criticism they articulate. Neo-progressives like Lloyd Cutler and James McGregor Burns, and Progressives like Herbert Croly and Woodrow Wilson leveled many of these charges for over a century. Yet they were not the first. Prior to ratification of the Constitution, Anti-Federalist critics had similar complaints. The persistence of this line of criticism for over two centuries suggests that it may contain an element of truth, perhaps even a large element of truth. Still, we may want to ask: how have we managed to muddle through the past two centuries, perhaps especially the last two decades given the purported dangers of partisan polarization and paralysis?
No doubt Mann, Ornstein and Brownstein identify serious problems, but is it really the case that the Constitution and the politics it engenders are inadequate to the challenges of today? A common lament of Progressive reformers, at least since Woodrow Wilson, has been that our constitutional system is incapable of responding to the exigency of modern life. Is it really? Is our constitutional system seriously endangered by today’s contentious and confrontational partisanship? Are we failing to govern ourselves as a nation?
Mann, Ornstein and Brownstein, like the Anti-Federalists and Woodrow Wilson before them, identify defects in our constitutional system. James Madison acknowledged many of the defects identified by his Anti-Federalist critics, and yet he went on to defend the Constitution’s capacity to promote free and effective government. Are we confronting the same choice today: Federalist or Anti-Federalist, Madison or Wilson?
In Praise of Deadlock?
In his delightful book In Praise of Deadlock: How Partisan Struggle Makes Better Laws, Lee Rawls dares to defend both partisanship and gridlock; he even defends the oft-maligned Senate filibuster. Rawls argues the filibuster promotes both gridlock and bi-partisanship because the filibuster forces negotiations, thus requiring bipartisanship. Rawls asks: So which do you want? Ending gridlock and ending partisanship are incompatible goals.5 Rawls also notes that it is impossible to sort out the blame for partisanship.6 He is correct. As both the Anti-Federalists and Woodrow Wilson complained, our complex separation of powers system precludes accountability. Like squabbling siblings pointing fingers, trying to determine who to blame is a fool’s errand; even if each of us is tempted to blame, for example, either Newt or Nancy, depending on our own partisan predilections. The partisan blame game itself is inherently political. Both parties are naturally partisan because both parties are partial; neither ever represents the whole.
Both the Anti-Federalists and Wilson also complained that our constitutional separation of powers and bicameralism promote conflict. Contentiousness has been a staple of our politics from the beginning. Rawls further suggests nostalgia for the good old days of bipartisan comity is ridiculous.7 He cites the attack politics of the 1840s, 1850s, 1890s, as well as during the presidency of Woodrow Wilson. Furthermore, he cites Galston and Nivola’s skepticism in Red and Blue Nation? regarding “the golden age fallacy.”
Rawls pits the “Doom and Gloom” school of partisan paranoia against the “What, me worry?” school of thought.8 Where the first sees gridlock, partisanship and polarization, the second sees policy stability, a competitive two-party system, party unity and principled opposition.9 Rawls acknowledges that partisanship has increased in recent decades, yet he wonders about the “breathless prose” of those who see polarization today as unprecedented.10 Rawls wonders “whether the polarization and partisanship of today, though not unique, is substantially degrading our ability to address the salient issues facing America.”11 Stated differently, we might ask: are we able to govern ourselves effectively? Is self-government the same as legislative productivity?
Rawls cites a raft of scholars, including David Mayhew, who doubt increased polarization has hindered legislative productivity; they see “hard bargaining” not “gridlock.”12 Certainly, President Obama’s success with healthcare reform and financial regulation legislation in 2010, following on his many legislative successes in 2009, seriously calls into question the ready assumption that gridlock plagues our political system.
Rawls further places partisan polarization in historical context, citing Gordon Wood, James McPherson, and other historians to conclude partisanship is “mild by historical standards.”13 He cites Galston and Nivola observing, “for all the hype about the ruptures and partisan rancor in contemporary American society, the strife pales in comparison with much of the nation’s past.”14 Parties, Rawls insists, “are baked into the bread of any democratic system,” echoing E. E. Schattschneider who said “[t]he political parties created democracy” and “modern democracy is unthinkable save in terms of the parties.”15 Finally, Rawls argues, “[t]he energy of American democracy also comes from the parties,” and he quotes John Hilley in The Challenge of Legislation declaring:
Political competition has been a prime catalyst propelling the values, ideas and policies through which the American consensus has emerged. And that progress has been contentious… Partisan competition has been at the center of our struggle to advance as a people and a nation. It has been our most important engine for adaptation and change – one that remains in full motion.16
In Democracy in America Alexis de Tocqueville also recognized the energy inherent in democracy: "What strikes one most on arrival in the United States is the kind of tumultuous agitation in which one finds political society.”17 Tocqueville adds: "The political activity prevailing in the United States is harder to conceive than the freedom and equality found there. The continual feverish activity of the legislatures is only an episode and an extension of a movement that is universal.”18 Tocqueville sees this energy in American politics, together with the mutability of our laws, as both virtue and defect.
The mutability of laws Tocqueville ties to the frequency of elections. "When elections quickly follow one another, they keep society in feverish activity, with endless mutability in public affairs … for democracy has a taste amounting to passion for variety. A strange mutability in their legislation is the result.”19 Tocqueville understood that the passion for legislative productivity is rooted in democracy. Perhaps the disdain for purported gridlock today reflects democracy’s passion for change?
But Tocqueville is not particularly worried about legislative instability, in large part, because in America this “passion for variety” does not reach the Constitution: “The Americans often change their laws, but the basis of the Constitution is respected.”20 Tocqueville elaborates: "They love change, but they are afraid of revolutions. Although the Americans are constantly modifying or repealing some of their laws, they are far from showing any revolutionary passions.”21 Tocqueville helps us place the concern with gridlock in historical and theoretical context.
James Madison, also, warned “[t]he facility and excess of lawmaking seem to be diseases to which our governments are most liable.”22 Madison seemed inclined to control this “excess of lawmaking” with his constitutional structure, including, the separation of powers and bicameralism. In his book, In Praise of Deadlock, Rawls asks if polarized parties pose a threat to our constitutional separation of powers.23 Yet our constitutional system controls the parties more than the parties control the Constitution. Thanks in part to the separation of powers, bicameralism, and federalism, for example, strife within our parties is often as great as that between our parties. During the recent healthcare reform debate, for example, vituperation between Democrats in the House, Senate, and White House easily rivaled their anger at the other party. Similarly, the bitterness and invective between the Barack Obama and Hillary Clinton camps during the 2008 nomination contest probably eclipsed the contentiousness between Obama and Republican John McCain during the general election. Why is intra-party factionalism preferable to inter-party factionalism? It is not always clear whether the bitterness and bile of partisanship and factionalism is any greater or less when it occurs within one of our two great parties or between them. Internal party factionalism is an example of the Constitution governing the parties more than the parties govern the Constitution; so, too, is partisanship. Lee Rawls concludes his book appropriately observing “as always, we should end with Madison.”24
It is tempting to begin and end with Rawls, but since he ends with Madison, we can use Rawls to segue to Madison.

James Madison Rules America
Our parties are creatures of our constitutional system. The Constitution governs. Contrary to the conventional understanding today, the separation of powers is not reducible to the checks and balances. We can blame Wilson, and before him, the Whigs, for this common contemporary misunderstanding. Rather, the Founders sought to create limited, yet effective government. The Federalists were not at all content with the ineffective government of the Articles of Confederation. In its place, they designed the constitutional separation of powers to promote stability and energy – to impede change and advance innovation.25 A contemporary example might be seen in the manner in which the 1997 budget accord followed upon the 1995-1996 government showdown/shutdown. Gridlock gave way to governing. The former may have been the predicate for the latter.
Contrary to conventional wisdom today, partisanship is potentially constructive and constitutionally permissible; it is a normal, natural and necessary part of our political system. If it is “evil” as some insist, it is a necessary evil as Tocqueville understood: “[p]arties are an evil inherent in free governments.”26 Politics – including partisan politics – is how we do policy; campaigning and governing go hand in hand. Politics is rarely far removed from policymaking; campaigning is inextricably part of governing. As Leroy Rieselbach taught a generation of Congress scholars, for example, Congress must at all times be responsive and responsible.
Some today say the Founders were anti-party. Yet James Madison concluded that “parties seem to have a permanent foundation in the variance of political opinions in free states.” Madison further observed, “the Constitution itself … must be an unfailing source of party distinction.”27 Indeed, congressional partisanship to this day may be rooted in the Constitution. In fact, the very debate today over partisanship and gridlock may be rooted in the Constitution. Political theorist and former long time Hill staffer, Jeff Bergner, for example, sees Democrats and Republicans today as defending two fundamental competing narratives: activist government vs. limited government, big government vs. self-government, legislative productivity vs. incrementalism, fairness vs. empowerment, equality vs. liberty.28 Arguably, both perspectives are rooted in the Constitution.
Some say the Founders did not expect political parties to form, that parties arose later in American history. Yet in a 1792 essay titled “A Candid State of Parties” Madison outlines the state of parties in three periods at the time: during the revolutionary war, during the ratification debate, and following the establishment of the new government. Madison concludes that this third division is “natural to most political societies,” and will likely endure.29 Even to this day perhaps? Admittedly, “A Candid State of Parties,” is a partisan tract, just as were the Federalist Papers. Madison, as “the Founder” was a statesman, a politician, a political theorist, and a partisan.
Certainly, the Founders’ practice of their principles in the first decade of the new Republic suggests that they were hardly anti-party. Their ardent partisanship during the 1790s provides evidence that sharp partisanship is a normal and natural part of our politics.
Today some lament the “permanent campaign” along with polarizing partisanship, yet both are constitutionally permissible and to be expected.30 Partisanship may be greater today than during the relatively quiescent 1950s, the baseline often used to measure heightened partisanship today. But the Ozzie and Harriet 1950s were hardly perfect. A politics of consensus and compromise can hinder needed change; consensus can be a cover for domination by an established status quo. Nostalgia for the partisan tranquility of the 1950s, for example, may overlook failures during that decade to address needed change in civil rights. In fact, during the 1950s, political scientists lamented the excessively local, parochial and pluralistic character of our politics. Our parties were said to be “tweedle-dee and twiddle-dum.” The political science fraternity famously called for a more disciplined and responsible two-party system providing a choice not an echo. Perhaps we should be careful what we wish for?
The pluralism of the 1950s and the partisanship of today may both be normal and permissible. Indeed, the potential for both pluralist incrementalism and “conditional” party government may be contained in our constitutional order.31 American politics perhaps oscillates between an all-politics-is-local pluralism and an all-politics-is-national approximation of party government. Perhaps our politics oscillates across the decades, as witness the disaggregation of the 1950s and the polarization of today. Or perhaps our politics oscillates within presidential terms. For example, the bipartisanship of George W. Bush’s first term, as seen in passage of No Child Left Behind, contrasts with the bitter partisanship during his second term. Perhaps American politics alternates within congressional terms, with the first year of a new Congress producing more policy, while the second year gives way to politics as the next election approaches. Finally, perhaps American politics fluctuates depending on the issues. For example, partisan warfare in the 2008 election year gave way repeatedly to bipartisan cooperation on Capitol Hill to deal with the looming economic and financial crises (e.g. TARP). The media made much of partisan conflict in 2008, yet little noted bipartisan cooperation when it occurred.
Both pluralism and party government are, of course, paradigms or perspectives within political science. Each captures only part of the complexity of our constitutional system arguably, thus neither is ever the dominant paradigm in political science. There may be a reason rooted in the Constitution for the oscillating of our politics and for these competing perspectives within political science. Nelson Polsby recognized the role of “innovation and stalemate” built into our constitutional routines: “it is possible to discern an alternating and somewhat overlapping pattern of activity and retrenchment, of focus and stalemate in congressional affairs.”32 He added:
Neither one mode nor the other is exclusively “natural” to Congress… both roles are historically characteristic of Congress, and both fully express the powers of Congress as contemplated in the overall constitutional design.33
Congress evolves, though perhaps not in a merely linear fashion. The separation of powers promotes both energy and stability, innovation and deliberation because the separation of powers both humbles and empowers Democrats and Republicans, majority and minority parties, as well as, the President and Congress though perhaps at different times and on different issues.34
In Federalist # 10 Madison notes that the “principal task of modern legislation” is the regulation of “various and interfering interests,” which “involves the spirit of party and faction in the necessary and ordinary operations of government.”35 Madison’s Constitution incorporates both the “mischiefs of faction” and the “spirit of party.” American politics encompasses both intense minorities and aspiring majorities, both special interest groups and majority-seeking parties. The Constitution checks and balances special interests and political parties; the Constitution also embraces and empowers special interests and political parties.
In the New Yorker recently Nicholas Lemann argued that the struggle among contending interest groups both constitutes and corrupts our politics.36 Similarly, partisan confrontation between political parties both constitutes and corrupts politics. Congressional politics may be a pendulum swing between “pluralism” and “party government,” encompassing compromise and confrontation, bipartisanship and partisanship – like two halves of a whole. The ebb and flow of partisanship is a natural part of our constitutional system, thus, in and of itself providing evidence of the dynamic, rather than static, character of the separation of powers.
Moreover, the decision by Democrats to advance comprehensive, non-incremental health care reform in 2009-2010 may by its very nature have been partisan since it raised fundamental questions about the role of government.37 During the House debate Democrats, according to the Washington Post, “cast the vote as a long-overdue opportunity to provide affordable health coverage to tens of millions of people and as the final pillar of economic security, alongside Social Security and Medicare. Republicans cast it as the ultimate government overreach, an assault on American liberty that would drive the nation deeper into debt.”38 Comprehensive reform augmenting the role of government inevitably may promote polarizing partisanship between the two parties. In order to avoid partisan confrontation, should Democrats have curbed their ambition? Few Democrats would suggest as much. The same might be said about dramatic attempts to re-limit government contrary to already settled consensus.
Privatizing Social Security may be one such example. The principled differences between the two parties matter; sometimes partisan warfare serves a larger purpose.
Of course, it is not just attempts at comprehensive reform that invite partisan polarization. The long term growth of government, in general, may be feeding the scourge of partisan polarization. James Q. Wilson once observed that at one time government was about a few things, whereas today it is about everything.39

Separation of Powers: Madison vs. Wilson
Charles O. Jones in The Presidency in a Separated System notes the “impressive creativity and flexibility” of our separation of powers system. He describes it as “an extraordinarily mature process, with a seemingly infinite number of mutations that are bound to challenge the analyst and the reformer.”40 Our separation of powers systems is complex, flexible, and even protean in character.41 It is hardly the static Newtonian machine described by Wilson and neo-Wilsonian critics who fail to fully appreciate the complexity and energy of our constitutional structure.
Jones challenges those who see gridlock in our system, emphasizing two arguments. First, gridlock may be good. Second, gridlock may not in fact reduce legislative productivity as often assumed.
The Constitution provides for limited government in order to promote liberty. Democrats and Republicans can find common ground on this observation as witness the cultural libertarians among Democrats and the economic libertarians among Republicans. Jones asks: what if gridlock is a form of governing? The “prevention of legislation may also represent effective governance.”42 At times, the status quo may be preferable to legislative change. Who has not agreed with this observation at one time or another? Limited government, as opposed to activist government, may at times be desirable.
Contrary to the conventional wisdom, the separation of powers may not in fact limit legislative productivity. Jones addresses James MacGregor Burns “deadlock of democracy,” James Sundquist’s “stalemate,” and Woodrow Wilson’s belief that “you cannot compound a successful government out of antagonisms.”43 He might also have added the Anti-Federalist lament about “jarring and adverse interests.”44 Jones further cites David Mayhew’s Divided We Govern which raises doubts about the presumption that our constitutional system inevitably limits productivity.45 The notion that the separation of powers is reducible to the checks and balances and inevitably produces gridlock is, at a minimum, incomplete, if not simply inaccurate.46 Congress brings energy to the legislative process precisely because power is fragmented and decentralized.47 Congress unleashes the entrepreneurial ambitions of individual Members. Let a thousand flowers bloom, so to speak. “Federalism, separation of powers, and jurisdictional overlaps are opportunities for change as much as inhibitors of change.”48 Multiple veto points may in fact be multiple access points in our complex legislative process.
Finally, Jones concludes that “competition” and not just compromise may be good and may facilitate good government. Institutional and partisan conflict may be necessary and healthy.49 Confrontation – including partisan confrontation – is a natural part of the legislative process. Jeremy Waldron outlines another major purpose of lawmaking in a democracy, namely, that of airing disagreement: “Legislation is the product of a complex deliberative process that takes disagreement seriously and that claims its authority without attempting to conceal the contention and division that surrounds its enactment.”50 Jones elaborates: “Legislatures are organized precisely to invite disagreement, publicly identify alternative views of an issue, and provide means for reaching an accommodation.”51 In fact, according to Dan Palazzolo in Done Deal? disagreement may be a necessary predicate to accommodation, as seen, for example, in the way the 1997 budget accord followed the1994-95 budget showdown/shutdown. Competition is also a natural part of the electoral process. As Sidney Milkis observes, partisanship can rouse us from our slumber, overcoming the blight of apathy and alienation.52 Political parties inspire debate and increase voter turnout.
Free and Effective Government
Again, with the new Constitution, the Federalists sought more, not less, effective and energetic government. They sought to empower government, rather than weaken it as has so often been assumed at least since Woodrow Wilson. As Marvin Meyers notes, Madison “never forgot that it was a twofold process: arresting the abuse of power and promoting the use of power for the public interest; cancellation and summation.”53
Gridlock may in fact at times define our politics, until a sudden breakthrough results in significant change. Sometimes these breakthroughs take the form of partisan electoral victories followed by a flurry of legislative activity such as 1994 and 2006, or even more dramatically 1932, 1964, or 1980. Or they may be responses to overwhelming majority sentiment; for example, the bipartisan legislative activism following 9/11. Other times breakthroughs take the form of bipartisan compromises following closely on the heels of bitter partisan contention, such as the 1986 Tax Reform Act, the 1996 Welfare Reform Act, or the 1997 Budget Accord. At times, gridlock may even be a necessary predicate to energetic change.
The Founders’ Practice of Their Principles
We have come to think of the Founders as statesmen, and James Madison, in particular, as a soft spoken gentleman inclined toward the politics of compromise and reconciliation presumably embodied in Madisonian pluralism. Yet these statesmen were also politicians and ardent partisans; indeed, Madison was a particularly effective legislative party strategist, dubbed “Jemmy the Knife” by friend and foe alike.54 Historian Joseph Ellis described the 1790s as “a decade long shouting match” unparalleled in American history.55 Partisans were quick to label their opponents “Jacobins” or “Monarchists” as they tussled over contentious issues including the assumption of state debt, the Bank Bill, Washington’s Proclamation of Neutrality, and later the Alien and Sedition Acts. Gordon Wood observed, “The 1790s became one of the most passionate and divisive decades in American history … partisan feelings ran very high.”56 By the end of the decade, Wood concluded, “Party spirit … ruled all.”57 Perhaps this was because role-of-government questions dominated political discourse as the Founders instituted their new constitutional system?
Temperamentally, Madison may have been a balancer and reconciler, “the master committeeman” interested in promoting comity and civility.58 Yet Madison did not try to take the “spirit of party” out of politics; nor did he share Jefferson’s pretense to rising above party. Madison understood clearly that the spirit of party factionalism was fated to be a constant in free governments, even if factionalism did not always take the form of two ideologically distinct party coalitions. Partisan and personal differences in the 1790s were sharp, significant, and often rooted in competing constitutional interpretations – just like today, perhaps? Arguably, the two increasingly polarized parties evolving in the 1790s even perpetuated a “permanent campaign” premised on a fundamental tension built into our Constitution, a tension rooted in two central constitutional principles: the separation of powers and federalism, legislative vs. executive authority, state vs. national power.
Clearly Madison and Hamilton were, in retrospect, statesmen, though they also were successful statesmen in part because they were party statesmen. Allied with one another against the critics of the Constitution during the ratification debate, these two Founders found themselves increasingly at odds during the early years of the Republic. In many ways, the 1790s were like today. Just as Federalist majorities eventually gave way to Jefferson’s “Second Revolution” Republicans, so, too, the “permanent majority” House Democrats’ succumbed to the “House Republican Revolution” in 1994, with House Republicans, in turn, losing their own extended majority to the Democrats in the bitter partisan warfare leading up to the 2006 election. Although Newt Gingrich and Nancy Pelosi may not be the statesmen we rightly understand Madison and Hamilton to be, still our two Founders were certainly part and parcel of the politics, partisanship, polarization and permanent campaign of the early years of the American Republic. One lesson all four leaders learned in their time: majorities fall, but Congress and the Constitution stand.
The Founders Did It, Too
Ellis’ description of the 1790s sounds like the polarizing partisanship and “politics of personal destruction” so oft lamented by critics of today’s politics:
The politics of the 1790s was a truly cacophonous affair. Previous historians have labeled it “the Age of Passion” for good reason, for in terms of shrill accusatory rhetoric, flamboyant displays of ideological intransigence, intense personal rivalries, and hyperbolic claims of imminent catastrophe, it has no equal in American history. The political dialogue within the highest echelon of the revolutionary generation was a decade-long shouting match.
In The Mind of the Founder Marvin Meyers details the bitter partisanship of the 1790s: “Republicans as well as Federalists found it difficult to conceive of a legitimate party competition for control of government: each commonly portrayed the other as enemies of the constitutional regime, and after the wars of the French Revolution began, as agents of a foreign power.”59 Madison’s aforementioned 1792 essay, “A Candid State of Parties,” reads like a political science history of the evolving party system, and yet it also served as an opposition editorial critical of the Federalists led by Hamilton.60
Today, we might call what Madison identified as the likely-to-endure third division of parties, Hamiltonian versus Jeffersonian; though Madison saw the division as between an anti-republican party and a pro-republican party. The “anti-republican” party, Madison argued, is “more partial to the opulent … having debauched themselves into a persuasion that mankind are incapable of governing themselves.”61 This party is inclined “less to the interests of the many than the few,” and marked by an affinity toward “rank,” “money,” “military force” and hereditary power.62 “The Republican party, as it may be termed” in Madison’s first recorded use of the formal name, believes in “the doctrine that mankind are capable of governing themselves.”63 The Republican party, “hating hereditary power” as “insult to reason” and an “outrage to the rights of man,” is naturally more inclined toward the “general interest of the community” and more “conducive to the preservation of republican government.”64
“This being the real state of parties among us,” Madison insisted, the Republican party was aligned with the “mass of the people” and inclined toward “promoting a general harmony.”65 The Republican party’s “superiority of numbers is so great” that it represented the “common cause,” “common sentiment,” and “common interest” of “the great body of the people.”66 Nevertheless, this silent majority in 1792, according to Madison, was temporarily outmaneuvered by “the anti-republican party,” which while “fewer in number” was “moneyed” and adept at “strategy” and “taking advantage of prejudices.”67 The “rival party,” Madison lamented, capitalized on the fact that “in politics as in war, stratagem is often an overmatch for numbers.”68
Today Ron Peters similarly outlines and elaborates on the differences between the Federalists (dubbed the “the anti-republican” party by Madison) and Republicans:
Federalists were more suspicious of democracy and more oriented toward an industrial expansion guided by the hand of capital. Republicans, while no less devoted to private property, were inclined to fear the power of the federal government and gave a far more egalitarian interpretation to the idea of the rights of man.69
Federalists, Hamilton in particular, favored a strong, assertive executive, while Republicans, with their base in Congress, were more suspicious of executive authority, thereby giving rise to the caricature each party drew of the other. “To the Federalists, Republicans were Jacobins in disguise; to the Republicans, Federalists were undisguised monarchists.”70
Historian Joseph Ellis’ description of partisan animosity in the 1790s makes it sound very much like the polarized politics of today, complete with an empty political center. Amidst a “sea of mutual accusations and partisan interpretations … the center could not hold because it did not exist.”71 Political rhetoric matched the polarized politics. Jefferson saw the Federalists under Adams as seditious and treasonable.72 John Adams, responding in kind, “wallowed in the muck. His supporters tarred his opponent, Thomas Jefferson, as ‘an atheist, anarchist, demagogue, coward, mountebank, trickster, and Francomaniac.’”73
Clearly, our First Amendment freedom of the press and freedom of association allow and even invite these abuses of licentiousness and excessive partisanship, but what is the alternative? The slippery slope of regulating First Amendment freedoms is no more desirable than it is possible to take the politics out of politics. In Federalist 10, Madison observes,
Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.74
Madison understood that in a free society, politics, including the “spirit of party,” is ubiquitous. Since the “latent causes of faction” and “the spirit of party” are natural to man, Madison sought to control the effects of factions, rather than remove their causes. Madison did not think it possible to take factionalism or partisanship out of politics; therefore, he sought instead to multiply factions and control their effects by means of republican institutions governed by constitutional structure. The separation of powers, bicameralism and federalism mitigate the dangers of partisan factionalism, often pitting intra-party factions against one another as much as inter-party factions.
Over the course of the early years of the American Republic, some issues stand out as particular points of contention between the competing factions, including, for example, the Bill of Rights amendments in the First Congress, the Bank Bill, the Proclamation of Neutrality and the Jay Treaty.
Later in the 1790s, under President Adams, partisan relations worsened. On July 4, 1798, Federalists frightened by the “specter of French intrigue” and “Jacobin” subversion, passed the Alien and Sedition Acts. Observed Marvin Meyers: “Jefferson and Madison saw at once a deadly threat to liberty and a priceless political opportunity.”75 Principle and politics were linked even for our founding statesmen.
By 1800, America had two clear ideologically polarized political parties; Republicans offering a choice rather than an echo of the Federalists, thus Jefferson’s election in 1800 came to be called the “Second Revolution.” This “revolution” was at least as great a challenge to the existing order as would be Newt Gingrich’s “House Republican Revolution” in 1994 or Democrats’ return to power in 2006 and 2008. All three partisan victories were marked by sharp rhetoric and bitter conflict. In many ways, the decade of the 1790s seemed, like today’s politics, to be a long “permanent campaign” between two warring parties. The 1790s partisan polarization even partook of the “politics of personal destruction” and “politics by other means” fomented by an increasingly partisan and petty press. One key partisan leader, Alexander Hamilton, eventually lost his life in a duel premised on the polarized politics of the era. Ironically, the proximate cause of the duel with Burr was Hamilton’s accommodation with his partisan foe, Jefferson, and Hamilton’s willingness to throw his support in a famous letter behind the election of Jefferson in 1800.76
Politics as Usual
James Madison understood that partisanship was an essential part of American constitutionalism. He did not seek to take the spirit of party out of politics; he did not share Jefferson’s infatuation with a non-partisan politics, nor the latter’s pretense to rising above partisanship. Jefferson may have been willing to forego heaven if his only option was to go there with a party, but not Madison.
Madison did not share Jefferson’s non-partisan pretense, nor did he share the intellectual vanity of his friend’s grand principles purportedly unsullied by politics. Indeed, Madison’s “matchless political savvy” was combined with his superior understanding of constitutionalism and the Constitution.77 “In every political society, parties are unavoidable,” Madison clearly understood; in fact, he later concluded parties “must always be expected in a government as free as ours.”78 Madison recognized that American politics and partisanship are rooted in constitutionalism and the Constitution. Mere partisanship is possible precisely because of limited constitutional government; the Constitution governs parties more than parties govern the Constitution. Political parties can be more partial and more partisan precisely because parties do not govern; rather, the Constitution governs. Our constitutional concrete is sufficient to withstand partisan warfare today, just as it did in the 1790s.
Madison, unlike Jefferson, did not see partisan opposition as illegitimate. Madison did not want to take the politics out of politics, because doing so would run contrary to the Constitution and our liberal experiment. Freedom of speech, freedom of the press, freedom of association and the right to petition government all invite for formation and exercise of factions, parties and a partisan press. Perhaps we can’t live with them and we can’t live without them?
Partisanship is rooted in the Constitution because of our First Amendment freedoms; yet partisanship is also rooted in the Constitution in another fundamental way. As noted above, throughout our history, beginning in the 1790s, partisanship has been premised on the fault lines of constitutional debate and interpretation over the central principles of separation of powers and federalism. Beginning with the debates in the 1790s between Federalists and Republicans, Americans have had constant recourse to debates over the meaning of the Constitution. Tocqueville noted in the 1830s, for example, that in America most political question eventually become constitutional questions. Clinton Rossiter concludes that beginning with the disagreements between Madison and Hamilton in the 1790s, “interpretation of the Constitution was to be the juiciest bone of contention in American politics for generations to come.”79 Differences over constitutional interpretation continue to provide fodder for our political, including partisan, debates. American politics may consist of an ongoing and ever deepening debate between the principles of the Federalists and Anti-Federalists.80
Partisanship in the highly charged and polarized decade of the 1790s focused on the relationship between the Congress and the President, and the relationship between the national government and the states. Again, the two central principles of the Constitution, the separation of powers and federalism, provided the premise for partisan differences in the 1790s, just as they do today. Ron Peters notes:
The partisan tendencies manifested during the First Congress became more accentuated during the remainder of the eighteenth century. The Federalists were, for the most part, the majority party of the decade, although their majorities were never overwhelming, and party identification itself was ill-defined. From the skirmishes between Federalists and Republicans of the Federalist decade emerged the contours of the first American party system as it was to develop after 1800. Likewise, the struggle between Hamilton and Madison defined two of the principal constitutional issues of American history: the relationship between the federal and state governments and that between the executive and legislative branches of the federal government.81

In sum, contentious partisanship has its roots in the Constitution.82

Harvey Mansfield contends that “politics is essentially partisan.”83 James Madison concurs: “no free Country has ever been without parties, which are a natural offspring of Freedom.”84 Mansfield concludes, “In America, party was begun by a Founder, Thomas Jefferson … in opposition to other Founders.”85 The concept of loyal or legitimate partisan opposition is intrinsic to our politics even when we are inclined to question the motives and good faith of our partisan opponents. We cannot take the partisanship out of politics. Nor should we want to try. Compromise and confrontation are both inherent in our politics. Indeed, American politics may be, as Samuel Huntington suggests, “the promise of disharmony.”
Interest Groups and the Media
Our other two key mediating institutions, interest groups and the media, are also complicit in the pronounced disharmony of today’s politics.
Ironically, one could argue that the decline of parties, and the rise of a more interest-group and media-dominated politics has contributed to partisan polarization. An excess of “party” and “partisanship” may not be the problem. The explosion in the formation of new interest groups, as the agenda of government has grown and as technology has made organizing easier, has contributed to the cacophony in our politics. Hyperpluralism or “demosclerosis,” as Jonathan Rauch calls it, has made our politics more competitive and discordant.
Similarly, the decentralization and fragmentation of the “new media,” as the hegemony of the old media erodes, is contributing to the confrontational quality of our politics. Groeling and Kernell note: “The media prefer conflict and controversy to cooperation and conflict.”86 “In the permanent campaign, parties are weak” Sidney Blumenthal argues, while “the media is strong.”87 Barbara Sinclair cites “a more intrusive, confrontational, and consequential news media” armed with “a voracious appetite for conflict and for stories that [are] simple, negative, and sensational” as compounding polarization.88 The new media environment invites outsider strategies of “going public” as mediagenic leaders such as Speakers Gingrich and Pelosi seek to broaden the scope of conflict.89
In Party Wars, her classic study of partisanship, Sinclair concludes “Partisan polarization cannot be blamed for many of the features of contemporary politics that we do not like, such as ugly politics.”90 According to Davidson and Oleszek, press norms exacerbate the media’s tendency to augment polarization:
Journalistic hit-and-run specialists … perpetuate a cartoonish stereotype: an irresponsible and somewhat sleazy gang approximating Woodrow Wilson’s caustic description of the House as “a disintegrated mass of jarring elements.91
The media’s disdain for political parties, may have contributed to the polarization of our politics, as much if not more than Democrats and Republicans. Ironically, a more media-dominated politics has vilified parties and interest groups while making our politics more polarized. The alternative to strong parties and partisanship is not a politics devoid of politics, rather it is a politics dominated by either or both of the other key mediating institutions – interest groups and the media. Finally, technological innovation alone has contributed mightily to discord in our politics, affecting dramatically the role of parties, interest groups and the press in our politics. Fortunately, however, no modern day Luddites are recommending an end to the Internet and social media.
In a recent New Yorker essay, George Packer argued that the U.S. Senate is broken, basing his argument in part on the complaints of some Senate Democrats. Yet Packer notes, “None of the Republicans I spoke to agreed with the contention that the Senate is broken.”92 He quotes Lamar Alexander (hardly a fire breathing conservative) suggesting Democrats will change their tune about the filibuster and holds just as soon as they are in the minority. Packer also cites retiring Democratic Senator Chris Dodd criticizing his liberal colleagues’ interest in rules reforms: “These people have never been in the minority.”93 Certainly Madison would appreciate Dodd’s institutional insight, namely, where you sit, influences what you think. Madison understood that institutions affect the behavior of individuals: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”94 In this important sense, the Constitution governs.
Ultimately, the “broken branch” is not broken. We are not on the verge of a second civil war. Since we never form a government, as Lloyd Cutler notes, the permanent campaign is permanent. While the party wars may seem never ending, in fact our politics is marked by intermittent compromise and confrontation. Just as the waxing and waning of legislative and executive power is a normal feature of Madison’s constitutional system, so, too, is the ebb and flow of partisanship to be expected. The separation of powers is dynamic, not static. Rather than criticize the Constitution and call for fundamental constitutional reform – with all its potential unintended consequences – perhaps we should try instead to understand the Constitution with its latent potential for both partisanship and bipartisanship, conflict and compromise, limited and effective government, stability and energy.
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