A Pretty Good System

The older I get, and the more political situations I see in the US and abroad, the more impressed I am by Madison's brainchild. The system of governance put forth in the US Constitution is simply stunningly well-conceived to its purpose. This post is about current events, but since the US government-school education system does such a poor job of teaching the basics of our civic society, I need to lay some groundwork first. Please bear with me.

The purpose of our Constitution is not, in fact, to promote fairness, provide a system that guarantees a certain standard of living to everyone, or ensure that pretty much everyone in the society has a vote on who runs the government. These are frequently thought to be the reasons for the Constitution; in fact they are side-effects of its governmental design.

The Founders, at the Constitutional Convention, sought to provide a much better and more stable system of government than existed under the Articles of Confederation, America's first constitutional system. In fact, they sought "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity". Their goal was to create a stable governing system based on providing the minimum necessary powers to government and the maximum Liberty to individuals.

There were some key compromises embedded in the Constitution, including both its most brilliant features (federalism, division of powers, limitations on the power of government, the systems for choosing government officers) and its most terrible flaws (acceptance of slavery). These compromises struck a balance that, with few exceptions, has in fact provided the most stable system of governance on the planet, along with maximizing the amount of Liberty enjoyed by Americans. Let's explore a few of these, and then we'll explore how they are important today.

The idea of Federalism was particularly powerful. By putting the powers of government as close as possible to the people, the ability for one group to gain large amounts of power over another - in other words the possibility of a tyrannical government arising - was minimized. Let's say that a particular State decides that only certain people can get married, and that the State will enforce all kinds of rules to decide that only the "right people" get married. Fine, but all that someone has to do to avoid that and marry whom they would is to move to another State. Or let's say that a particular State decides to extend massive governmental aid to the least-wealthy of its citizens, and to impose huge taxes to do so. Again, all one has to do to avoid this is to move to another State. Federalism allows a very diverse population to all get the legal and political environment they want, as long as what they want is not to control the behaviors of others. Moreover, it's one thing to be one of 10 people at a town council meeting, and another to be one of 100 in a State representative's office, and still another again to be one of millions petitioning Congress. Federalism makes it possible for citizens to maximize their influence over politicians.

A part of this same protection is to severely limit the powers of government, with the powers becoming ever more limited the further they get from the ability of the people to influence them. This not only limits the damage of a bad law, it also prevents the worst laws from being enacted. The Constitution limits the powers of the Federal government to those directly specified in the text, or immediately necessary to carrying out the powers specified in the text. (For example, the Congress can authorize the expenditure of money to create a building in which people can carry out their functions under the Constitution. Theoretically, the Congress could not authorize money to build a building for private use. I say "theoretically" because the interpretation of the Constitution most used since the 1930s is that there are effectively no limits to government power, except to some extent those embedded in the Bill of Rights. More on this anon.)

To make it even more difficult for the Federal government to tyrannize the people, the government's powers were brilliantly divided among two legislative bodies, the House and Senate, an executive and the judiciary. The legislative bodies would have to agree on the need for and form of a law before it could be passed; the executive would have to concur (or be overridden) for the law to pass, and would have to enforce the law for it to have effect; the courts would interpret the law, and would have to agree on the justice of its enforcement in any particular case. Overall, actions could not be taken by the government without enabling legislation, and the associated funding, nor without the affirmative action of the executive, nor without the concurrence of the judiciary as to the legality and rightness of the action.

In addition to the division of powers, each of these offices was chosen in a different manner. Representatives were directly chosen by small numbers of people, and served for a limited time; they were structured to protect the individual rights of the people. Senators were chosen by the States, and served a longer term; they were structured to preserve the sovereignty of the States, and thus the rights of the people to govern themselves. The President was to be chosen by a group of electors, who were to nominate the people they felt would make the best President (and one of whom at least must not be from their own State, to prevent large States from controlling the process). The electors themselves were to be chosen by the people, but were not to be bound to vote for any given person in advance. In other words, the President was to be chosen not by the citizenry at large, but by electors trusted by the people to choose wisely from among the available potential Presidents. I believe that it was the Founders' intention that there would not be campaigns for President at all, but that the electors would seek out, determine the eligibility of, interview and choose the best-qualified candidate. Again the intent was to tamp down party politics (what the Founders termed factionalism) and prevent particular States from accumulating too much sway over the others.

There were two deep flaws embedded in the Constitution (and one flaw created by its absence, which turns out not to have mattered in the long run). One embedded flaw was the acceptance of slavery. Until the 13th Amendment, in 1865, Article I, Section 2 implicitly embedded slavery into our governing fabric. The conflict between allowing slavery and demanding Liberty eventually led the country to split into two powerful and uncompromising camps, and was a major cause of the Civil War, which in the end led to the abolition of slavery and involuntary servitude. Our failure to fully embrace this change led to discrimination, the Jim Crow laws, the Civil Rights movement and our problems with racial politics, which thankfully seem to be abating over time. (Perhaps my children will be adults in a country which does not play racial games (on both sides) for political gain - I certainly hope so.)

The second embedded flaw was the electoral system, which in the original almost guaranteed that the President and Vice President would be at cross purposes. This was rectified with the 12th Amendment. But the 12th Amendment itself was flawed: having removed the ability for a partisan coup to change the governing party, it did not consequently make it easier to impeach the President. This effectively shifted power dramatically to the President. In the end, that may not turn out to be an altogether bad thing, but it certainly goes against the original design.

More importantly, though, the effect of the 12th Amendment was to bring about the two-party system. Because the elections are winner-take-all, and there's no way to specify an order of preference, the importance of factions was diminished by forcing the factions to share the responsibility for governance. Once there was no shared responsibility, it was a matter of time until a robust two-party system developed. This, too, might have been bearable, had it not been for the 17th Amendment.

The 17th Amendment, by removing the ability of the States to select Senators (instead making Senators elected by the people of each State), removed the political check on the ability of the Federal government to act. Effectively, the Senate became a longer-serving House. The very brake on popular passions that the Senate was created to provide was effectively eliminated. In combination with the two-party system, this effectively guaranteed that the political system would devolve into an us-against-them partisanship, driving down participation by the non-partisans, locking out any other parties from competing on a level legal field, and increasing the stakes of winning rather dramatically.

Taken together, the Constitution did an amazing job of creating a stable governing structure and preserving the maximum of individual Liberty compatible with long-term civil governance. In particular, what our system as originally constituted provides is protection of minorities (whether permanent or transient) from the power of the government as wielded by the majority. A few large States cannot control the electoral college (which is one reason why eliminating it would be a bad idea); a few powerful individuals cannot ensure passage of a particular law to benefit them; a populous region cannot automatically compel the behavior of people outside of that region and so on.

And here is where we come to current events. The Democrats and Republicans are switching places. For the foreseeable future, the Republicans will be the political majority party and the Democrats will be the political minority party. To a large degree, this comes about because of a perfectly natural behavior: self-segregation. From working in the San Francisco Bay Area for a short time, I can assert that I would not be terribly comfortable living there. Not only is the legal environment unwelcoming on issues important to my family and myself (taxation, homeschooling, midwifery), but everywhere I went out just before the election, I heard people talking about my views and the people who hold them in the most scathing terms. Who wants that? I doubt someone from the upper West side of New York City would be terribly comfortable in Keller, TX, for the same reasons.

So the movement of people to be around those who believe similarly tends to produce regionalism where none would otherwise exist. Hence we get the red state/blue state phenomenon, with few "swing states" in the middle. This happens on more issues than just political viewpoints, involving race, religion, ethnicity, cultural feel and economics, among others. The result is that the Democrats have been concentrated more and more heavily into fewer and fewer States, and even into fewer counties within those States. This is a similar phenomenon to how the Republicans were concentrated between the 1930s and the 1970s, and the results are similar: even though the White House may go back and forth, control of the Congress is pretty well assured to the Republicans for a long time to come.

Now, with this switch, the Democrats are suddenly feeling what it's like to be in the long-term minority. You don't get to set the agenda or control the debate. You don't get to direct spending and legislation the way you want it to go, and you don't get to decide who the regulators are. You don't get to appoint the judges to ensure that your laws are interpreted "correctly". Instead of making policies and forcing others to live with them, you are being forced to live with policies made by others. Some Democrats are reacting rationally, and some less so.

But the Republicans have also switched positions. Instead of being for the "Gingrich revolution" of stopping unfunded mandates, turning power over to the States, controlling the spending and thus the power of the Federal government, some Republicans are savoring the chance to change the legal and political environment back to the way they prefer it to be. No Child Left Behind and the proposal of a Constitutional amendment to keep courts from adjudicating on marriage prerequisites are but a foretaste of what we will see over the next couple of decades, barring too-early overreaching on the part of the Republicans' fringe. (If the ultra-Right gets control of the agenda, the shift will quickly reverse itself, perhaps in less than a decade.)

We are at a balancing point, just barely tipped over into the Republicans' advantage. There are still a lot of Republicans who remember being in the minority, and appreciate Federalism and judicial restraint therefore. There are beginning to be some Democrats who appreciate these characteristics, too. It's just possible that right now, in the very near term, we can come together to strip away some of the fiscal and regulatory power of the Federal government, to return power to the States and the people, and to re-impose Constitutional limits on the Federal government's powers. But the window of opportunity is short.

What can we do? There are six key steps:

1. Repeal the 17th Amendment, returning power to the States to obstruct the action of the Federal government when such action is detrimental to the rights and powers of the States.
   
2. Rework Social Security and Medicare to be State-funded and return those taxes to the States, mandating continuance for a limited time (say, 20 years), after which such programs would be voluntary on the part of the States. This would allow us to repeal the 16th Amendment, thus controlling the fiscal power of the Federal government. (There would be sufficient income from allowed sources to fund the rest of the Federal government, so far as I can tell, without the income tax.) There would then not be any need to forbid transfer payments, because there simply wouldn't be money to make them with.
   
3. Pass a Constitutional amendment forbidding States from compelling the votes of electors, and for good measure choose the Electors in years different from the Presidential elections, to minimize the chances of electors being chosen to vote for a specific candidate known in advance of their vote. For that matter, I'd be happy to see the power of nominating justices of the Supreme Court and lesser Federal courts given to the Electoral College. Strengthening the Electoral College, and removing immediate partisanship from the choice, would weaken the power of the political parties long-term, making more choices available to the people as a whole.
   
4. Pass laws limiting the power of Federal court decisions. In general, the idea would be to prevent a court decision from having automatic effect on anyone but the plaintiff and defendant in a particular case. While this would lead to quite a bit of re-litigation of contentious cases, it would also prevent an unelected oligarchy from determining the law quite apart from what the Congress passes as laws.
   
5. Transfer the regulatory functions of government from the executive to the Congress. If the Congress needs to maintain issues-based staffs to provide Congressmen with the highly-technical information need to, say, regulate hazardous wastes, that's fine. The Congress would still have to pass their recommendations into law. The current system gives far too much power to unelected bureaucrats.
   
6. Reform the process of setting House district boundaries, to prevent gerrymandering. This would ensure that people have real choices for their representatives, rather than faux choices where the election is actually decided in the primary.

While these changes might shock some people, in fact they by and large just return the US to a Constitutional system that is more like the original. In the process, the red state/blue state acrimony, and the problem of overly-freighted Federal elections causing bitter divides, would go away. Then, perhaps, we could dump the mindless partisanship and get back to working on what's best for the country as a whole.

A man can dream.

UPDATE (11/19): Francis Porretto makes a similar point, more eloquently.

The flaw that was created by its exclusion from the Constitution, by the way, was a process for bringing in new territories and States, and ensuring their reasonable governance. We were lucky here: when the prospect came up, it was under Thomas Jefferson, and the power of precedent has ensured that a reasonable system was created. It didn't have to be: we could have easily ended up with a system that would have led to colonialism in the US, and we are fortunate, given the history of other colonial powers, that our brief flirtation with colonialism during and after the Spanish-American War was so limited in time and scope.

Posted by Jeff at November 16, 2004 04:33 PM | Link Cosmos