Exactly one year from the Trump inauguration, our dysfunctional constitutional system looms large. The Republicans control the White House and both houses of Congress. Republican Presidents have appointed five of the nine sitting Supreme Court Justices, Chief Justice Roberts, and Justices Kennedy, Thomas, Alito, Gorsuch. (Justices Ginsburg, Breyer, Kagan, Sotomayor were appointed by Democratic Presidents). It might seem that a single party with control of each political branch of government, including both Houses of Congress, and that appointed a majority of the sitting Supreme Court Justices, would be well poised to hit the ground running. But one year in, the Trump administration has shown otherwise.
As of midnight Friday, January 19, the federal government is closed for business. The late night vote for a continuing resolution failed, falling largely, but not exclusively, along party lines. Trump calls this the Schumer (D.NY.) shutdown, and that Democratic leaders call it the Trump shutdown. Perhaps not surprisingly, Trump took the precise opposite position when a shutdown loomed large during the Obama presidency, declaring that the sitting President is invariably responsible. Also, not surprisingly, this shutdown follows Trump's reneging on very recent commitments to key Democratic leaders, Chuck Schumer and Nancy Pelosi (D.CA.), containing features his advisors apparently disliked.
Nothing about Trump is new. He routinely makes representations or commitments that he later contradicts or fails to honor. This past year has made quite plain that Trump is not a man of his word. He is erratic and unpredictable, rather like a toddler, albeit with far more power, and with those around him, as if appeasing a baby king, enduring whatever machinations are needed to keep him happy in the moment, with the ever-fading hope of controlling his basest impulses.
Despite all of this, the real problems we are experiencing run far deeper than Trump. It is also is wider and deeper than the shutdown. Whatever one thinks of Trump, one thing is clear: The shutdown is symptomatic of a more profound structural pathology. Yes, I have my personal view of moral culpability, but specific political actors come and go, and whenever, or however, Trump's term in office ends, he won't take the structural problems away with him.
Our Constitution rests on three critical premises that have now been dramatically overtaken by a combination of history and technology. The Constitution's Framers envisioned that (1) the expansive federal government would render what they called factions, and what we call parties, difficult, perhaps impossible, to form. That's because they believed (2) that the primary commitments of elected officials naturally arise from physical geography, the places they thought of as home. Contrary to those who opposed the Constitution (the Anti-Federalists), the Framers further believed that our expansive national polity, comprising rural and urban, mercantile and farming, banker and borrower, tradesman and builder, and myriad other interests, would transcend what Madison called "factional violence," rendering such violence nearly impossible to effectuate. And (3) even if factional violence somehow managed to rear its ugly head, the Framers believed that our representatives' secondary commitments--to the institutions they were called upon to serve--would ensure that they jealously protect against institutional encroachments by the other branches, or levels, of government.
My point is not to give a civics lesson on separation of powers, checks and balances, and federalism. Suffice to say that this idyllic vision had problems from the start. Part of the problem is that the Framers simultaneously embedded other features fundamentally in tension with the preceding vision. Direct, yet filtered, presidential elections ultimately forces a stable two-party system. See here (see especially chapter 6). Our coalitions largely form before elections, whereas in parliamentary systems, which have more parties, they form after. The second post-Bill of Rights amendment, The Twelfth Amendment, responded to this problem, formalizing a recognition of parties, and letting presidential candidates select running mates, rather than being forced into shotgun weddings with those they ran against in the general election.
The two-party system has long been in tension with the premises of jealous geographical and institutional commitments. In a world with two parties, those holding political ambition know where their loyalties must lie. True, prior to the 17th Amendment, state general assemblies were empowered to select their United States Senators, but we ditched that in 1912 in favor of state-wide elections, which are dominated, once more, by the party system itself.
Despite all of this, the structural aspect of our system hung together well enough for most of our history. Once the two-party duopoly solidified, there was almost always a crossover cohort of legislators committed to good governance, enough to allow the out-of-power party leaders to join in negotiations, back-room conversations, even parties. Good governance for at least a subset of critical legislators exceeded raw personal ambition and raw commitment to ideology above all else.
Identifying the precise cause of the breakdown is a challenge. Possible causes include increased campaign spending, the increasingly national attention to contested Senate and House elections, and profound changes in campaign finance laws arising from First Amendment case law. In combination, these factors give rise to something of a chicken-and-egg set of causal problems. If I had to pick best single explanation of where we find ourselves today, it would be technology, and specifically the internet. Until fairly recently, thoughtful citizens acquired their news from major, and properly vetted, media: newspapers and magazines. As a society, we read in common particular news accounts and op eds. We engaged with discourse that we sometimes agreed with and sometimes did not. We were literally (in the janus-word sense of figuratively) on the same page. The perfect storm that rendered our political system not merely capable of theoretical dysfunction, but rather actually dysfunctional, arises from a social media that forces two alternative factual renditions (or more) of pretty much every single story that appears in print or on-line. And this isn't even limited to politics. Based on my recent Facebook feeds, it includes such political topics as DACA, the tax bill, the continuing resolution, and Trump's sex life, and such other topics as the now infamous date involving Ansari Aziz and "Grace" and the #metoo movement. The list goes painfully, endlessly, on.
In a far-too-hyper-partisan world, each side views its "facts" and its intensely personal ideological valence as inevitably intertwined. If the two cannot be reconciled for every single story, something always must give. And the thing that gives, 999 times out of 1000, is not our ideological commitment. Each side isn't merely right; it is righteous. And this makes the other side, well, unrighteous. And since there is a counter-narrative to any story that might, even in the softest possible way, offend, confirming world views become ripe for the picking, just a click or two away. Always.
The problem is that our political institutions haven't changed as all this was happening. They've stayed rigidly the same. An inherent feature of that sameness in a two-party partisan world is a never-ending series of games that reflect what economists identify as "bilateral monopoly," albeit not the one the framers envisioned. The framers anticipated that Congress would provide legislation that the President would take or leave. The negotiations would be driven primarily by institutional commitments and commitments informed by geographical jealousies. And so, when the Republicans have control, but need just a wee bit more control (say to avert a filibuster used to stop a Continuing Resolution, and so 60 votes rather than a mere 51), the real bilateral monopoly is between the parties, not the institutions. Although the Democrats and Republicans have to work together, they no longer can. After all, when right becomes righteous, compromise becomes immoral.
Our constitutional system is broken. Its premises that no longer hold. The two nodes in our camel-like distribution have moved irreparably far apart, more like two dromedaries pacing in opposite directions. Ideology has become morality, and everything else is forced to yield. We don't disagree on how to interpret facts. We disagree that facts exist. We speak different languages. We are post Tower of Babel, barely hanging on to a common alphabet, but having abandoned all but the pretense of a common cultural language. With only two parties, there's no competition, no pressure to accommodate, to be reasonable. And no, we can't just summon a third party. The two-party system is genuinely baked-in.
The last time this sort of thing happened, the constitution, called the Articles of Confederation, lasted a mere 7 years, from 1781-89. The one that replaced it, which we call the United States Constitution, has lasted for 229 years, beginning in 1789. That's a remarkable 32.7 times as long as the Articles, and with a total of 27 amendments, 17 after the Bill of Rights. That's a pretty good run for a profoundly flawed instrument.
I'm increasingly persuaded that minor tweaking won't do. We ditched the Articles principally because its premise--ultimate state sovereignty--rendered it dysfunctional. The premises of our Constitution--defeating faction; geographical determinism; and institutional, rather than partisan, jealously--no longer hold. These premises haven't resonated for a long time, and we increasingly appear to be at a breaking point.
I welcome your comments.