Did the Founding Fathers Screw Up?

The country needs and, unless I mistake its temper, the country demands bold, persistent experimentation," Franklin Roosevelt declared as he campaigned for the presidency in the spring of 1932. "It is common sense to take a method and try it. If it fails, admit it frankly and try another. But above all, try something."

Most of the experiments Roosevelt tried to rebuild the economy once he took office encountered fierce opposition. But his closing admonition -- try something -- transcends our political particularities. It's an affirmation of a specifically American common sense, a statement of our national inclination to action, an affirmation of the pragmatism that remains the country's signal contribution to philosophy. In times of trouble, try something. Who could be against that?

Yet, three years into the worst recession since Roosevelt's time, a countercurrent, every bit as American as our bias for action, has swept over us. Twenty-five million Americans are either unemployed or underemployed, and the average duration of joblessness stands at record highs. Consumers are too deep in debt to consume; our producers produce and our investors invest abroad. To remedy all this, the federal government today tries ... nothing.

Washington has ground to a halt, paralyzed by a political division deeper than any we have seen since the days when Abraham Lincoln warned that a house divided against itself cannot stand. "Nothing" also isn't doing much to commend the American way to other countries. Much of the developing world now sees China and its model of capitalist authoritarianism as more efficient than the creaky workings of democracy. Nations still marvel at the United States, but today, it's our gridlock that draws the world's wonder.

It shouldn't. The current impasse between the Republican House and the Democratic president and Senate has only highlighted what is a chronic -- indeed, constitutional -- condition: Just as the American people have a bias for action, the American government has a bias for stasis. Governmental gridlock is as American as apple pie.

Those who defend our system concede -- indeed, exult -- that it places roadblocks in the path of major policy shifts. When the nation faces a genuine crisis, they argue, our government invariably rises to the occasion, as it did in Roosevelt's time. Unfortunately, that's a selective reading of our history. One hundred and fifty years ago, our government was not up to the task of holding the union together. Today, as the Great Recession grinds on, the different branches of government cannot agree on a course of action.

The root cause of all this inactivity is our peculiar form of democracy. While most democracies are governed by parliamentary systems, our Founders opted for a presidential system, which they consciously booby-trapped with multiple veto points to impede decisive legislative action and sweeping social change.

In America, for instance, presidents take office, but they don't form a government, as prime ministers do in virtually every other democracy. Presidents can form no more than an executive branch. They appoint cabinet members, sub-cabinet officials, military commanders, ambassadors, and the heads of regulatory agencies. They don't appoint congressional leaders; often as not, their party may not control either or both houses of Congress. Indeed, the White House, the Senate, and the House have been controlled by the same party during just 8 of the past 30 years. Even when the same party holds Congress and the presidency, the system still fragments power.

Presidents and congresses are elected not merely independently but at different times and by different electorates. After a midterm election in the United States, no members of the House and only one-third of the senators hold their seats by virtue of having won them in the same election that brought the president to power. The president and the Congress each have separate but equal claims to power and legitimacy. Thus a government divided between a president of one party and a Congress of another, political scientist Juan Linz observes, can reach an impasse for which "there is no democratic principle on the basis of which it can be resolved."

That's why nations with presidential systems, not parliamentary ones, Linz continues, have been more prone to military takeovers, which occur most frequently when civilian governments have reached just such an impasse. The United States is the sole presidential-system nation to have avoided this, Linz concludes, chiefly due to "the uniquely diffuse character of American political parties." Were our parties not so diffuse, were they ideological and uncompromising, our normal bouts of gridlock could escalate into a crisis -- which is precisely what's happened since the Republican Party was captured by the Tea Party. In a parliamentary system, though, the Tea Party would likely be a separate party, just one among many, like Le Pen's ultra-nationalists in France, that could be excluded from the governing coalition.

What makes parliamentary democracy more responsive, and more efficient, than presidential democracy is that its executive and legislative branches are unified. A party's legislative candidates all seek office in the same election on the same platform. The winning party's leader becomes prime minister, either because his party has won a majority of the parliamentary seats or because his party forms a bloc with another party or parties that together make up the majority. All power to both pass and administer laws under this system resides with the parliamentary majority.

To be sure, this unification of power can come at a cost. In a presidential system, it's easier for the branches of government to check the misdeeds of other branches, as Congress did during Watergate. In parliamentary systems, the capacity for swift and sweeping mistakes is every bit as great as the ability to do good -- something that the austerity budget of Britain's current Tory-led government demonstrates with each passing day. Parliamentary systems can fragment power, too, especially if, like Israel's Knesset, they are filled with small, factional parties that win seats because the minimum vote threshold for legislative representation is so low. But for all the imperfections of parliamentary democracy, it is the system that nearly all democracies have chosen, including the nations of Eastern Europe that could and did comparison shop once the Soviet empire collapsed.

The reason for such near unanimity becomes clear when we look at America's difficulties in achieving universal health insurance. Writing shortly after President Bill Clinton's failure to secure passage of a national health system, political scientists Sven Steinmo and Jon Watts argued that what made national health insurance so much more difficult to enact in the U.S. than in other democracies wasn't a greater level of opposition but our form of democracy. "Doctors, hospitals, insurance companies, business interests and conservative political forces generally fought bitterly to prevent national health care insurance in every country in which national health care policies eventually emerged," they wrote. But control of the legislature by parties committed to national health guaranteed that the plans were enacted nonetheless. Britain's national health program, Steinmo and Watts noted, emerged from negotiations among the bill's supporters -- cabinet ministers of the Labour Party government, which had been swept into power in 1945. That's a far cry from Harry Reid's agreeing to strip the public option from the 2010 health-reform bill to win Joe Lieberman's vote.

While Labour needed only a majority of Parliament to enact national health insurance, progressive reform in our system requires the alignment of both houses of Congress with the president, the appeasement of committee chairs, and, since the Republicans began insisting upon it, a 60-vote supermajority in the Senate. Roosevelt took office with a huge popular mandate and a massive congressional majority. His plan, though, to include national health insurance within Social Security -- a position that commanded widespread support -- fell victim to powerful Southern Democratic congressional committee chairs, who threatened to derail Social Security itself if he insisted on it.

By the time Barack Obama became president, the Dixiecrats had migrated to the Republican Party. Even though Obama's Democrats, purged of Southern reactionaries, had large majorities in both houses of Congress, the Southernized Republican Party invoked the demand for a 60-vote supermajority at every turn, a hurdle that neither the public option in Obama's health-care reform nor stricter bank regulation in the Dodd-Frank bill were able to clear.

Other reform presidents with popular mandates and control of Congress didn't get nearly as far as Roosevelt and Obama. In 1949, Southern Democrats, angered by Harry Truman's desegregation of the armed forces and other moves toward racial egalitarianism, killed his plan for national health insurance, though Truman had just won election -- and the Democrats had retaken both houses of Congress -- running on that issue. During Jimmy Carter's presidency, the Democrats' multiple plans for health insurance were thwarted by the ongoing struggles between Carter and leading congressional Democrats. Bill Clinton's campaign for universal health coverage also fell victim to internal Democratic disputes and the Senate's 60-vote threshold.

Absent a near national consensus on a broad program, wrote Lloyd Cutler, who served as White House counsel for both Carter and Clinton, "it has not been possible for any modern president to 'form a government' that could legislate and carry out his overall program. Yet modern government has to respond promptly to a wide range of new challenges. Its responses cannot be limited to those for which there is a large consensus induced by some great crisis."

The problem, Cutler concluded, was the Constitution. More bluntly, the Founding Fathers got it wrong.

 

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The men who drafted our governing document came to Philadelphia in 1787 to establish an effective national government, something that the Articles of Confederation had plainly failed to do. However, they brought with them two distinct but interconnected fears, which ultimately kept them from achieving their goal. Disproportionately drawn from the de facto aristocracy of pre-Revolutionary America, they feared that a new class of leaders -- the farmers and artisans who were increasingly represented in state and local governments -- was elevating parochial concerns over the general good in the business of lawmaking. Among the delegates, writes historian Sean Wilentz, "fears of a tyrannical demos were pervasive." By entrusting the election of the new Senate to state legislatures and that of the president to an electoral college, they meant to populate the new national government with (and by) men like themselves.

The other fear that suffused the drafters' deliberations was that of faction. By "faction," James Madison, the Constitution's primary author, wrote in Federalist No. 10, "I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed [sic] to the rights of other citizens, or to the permanent and aggregate interests of the community."

In England, nearly to the end of the 17th century, factions had risen and been put down generally by force. By 1787, however, the factions in England were peaceable, if still embryonic, political parties, whose nonviolent nature had not yet rendered them respectable, and most certainly not to the Constitution's drafters.

Factions naturally arise, Madison wrote, and cannot in a democratic republic rightly be suppressed. The task of government thus became "controlling [their] effects." A minority faction could simply be defeated by majority vote. But when the faction was a majority? That was trickier. For that, Madison and his fellow drafters turned to Montesquieu, the French political philosopher (the "oracle," as Madison termed him in Federalist No. 47).

Montesquieu's remedy for the scourge of majority sovereignty was a separation of governmental powers into competing entities that could check one another. Were the executive power to be chosen by the legislature, he wrote, "there would be an end then of liberty." This was a curious assessment, since in England, which Montesquieu claimed as his model, the emerging executive power, the prime minister, was already a creature of Parliament. (Montesquieu was more interested in reporting on what he thought should be rather than what actually was.) In Montesquieu's vision, the checks were everything, while action was a sometime thing at best. The triumvirate of king, lords, and commons, he wrote, "would naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert."

But suppose they are forced to move -- say, by the necessity of raising the debt ceiling -- and can't get themselves in concert? What then? Repose? Recriminations?

To the Founders, writing in the shadow of Montesquieu, power -- no matter how democratically won and exercised -- had to be fragmented. "In republican government," Madison wrote in Federalist No. 51, "the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions ... will admit." If that slows down the legislative process, so much the better. "In the legislature," wrote Alexander Hamilton, the most important drafter of and advocate for the Constitution after Madison, "promptitude of decision is oftener an evil than a benefit."

Mr. Hamilton, meet Max Baucus.

Just four years after they had co-authored the Federalist Papers, Hamilton and Madison had become leaders of the new nation's two rival parties -- respectively, the Federalists and the Republicans. From denouncing the evils of faction, they had moved on to heading up America's factions. They had, however, left in their wake a government with so many divisions of and checks to power that they came close to stifling majority rule.

 

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America has paid a price for going first -- for drafting its Constitution a half-century before the commitment to majority rule and the idea of universal suffrage (which meant universal white-male suffrage) became widely accepted. Institutions established to protect both the aristocratic phobias and the slave-holding interests of late 18th-century America -- the Electoral College, the state-based Senate -- have outlived purposes that have long since been forgotten. Yet they govern us still.

No region has been more defined by a fear of majority rule than the South. As the interests of the increasingly industrial North and the Southern slavocracy grew more divergent in the 1830s, the South's political and intellectual leader, John C. Calhoun, put forth the theory of nullification. According to Calhoun, national legislation could not take effect unless it cleared an insuperable hurdle: ratification by legislatures in every one of the states. Majority-rule governments, Calhoun insisted, are inherently oppressive -- a viewpoint that the aged Madison indignantly rejected, writing that it would "overturn the first principle of free Govt."

Calhoun's immediate concern was tariffs that would disadvantage the South, but his deeper concern was slavery, which he feared a Northern majority would one day try to abolish. Anti-majoritarianism came naturally in Calhoun's South Carolina, one of only two states (the other was Mississippi) in which slaves outnumbered the white population. Repressing majorities has long been the linchpin of the white South's politics -- obstructing majority rule through the claim of states' rights, suppression of black (and now Latino) voting, control of congressional committee chairmanships, and the filibuster. It's worth noting that the filibuster emerged as the Republicans' favored tactic only when the Republican Party became centered in the white South. In their efforts to use all the tools of divided government to negate first Bill Clinton's and then Barack Obama's majorities, Republicans have inherited the spirit, if not the theories, of Calhoun.

So what to do? A constitutional convention to rewrite our governing document would unleash every bat in America's political belfry. More modest changes, though, remain in the realm of the possible, and others, while not on anyone's agenda now, might be put there with some proselytizing.

The two reforms with the most support -- ending the filibuster and abolishing the Electoral College -- would do nothing to curtail the fragmentation of power within the federal government, but both would limit minorities' ability to reduce the sway of majorities. Another reform that would create a more representative government would be to change the timing of elections and the terms of congressional office. Presidential contests draw far more votes than midterm congressional ones: From 1984 through 2008, turnout in presidential elections has ranged from 53 percent of eligible adults to 62 percent, while turnout in midterm elections from 1986 through 2010 has ranged from 39 percent to 42 percent. If House members were given four-year terms coterminous with the president's, they would be answerable to the same larger electorate. This, of course, would also be true of senators. These wouldn't be parliamentary elections -- the candidates for president, senator, and representative would still be elected separately -- but at least our elected officials would all derive their power from the identical and most broadly representative electorate.

Although the federal government can't go parliamentary, why can't the states? Maintaining two legislative bodies at the state level has been pointless for the past 50 years, ever since the Supreme Court's one-person, one-vote decisions; those rulings required state Senate districts, once apportioned by geographical unit (such as counties), to be apportioned by population, just as lower-house districts are. Talk about duplication and waste in government! Nebraska has long had a unicameral legislature. There's no good reason why 49 other states shouldn't follow suit. Nor is there a reason why at least a few more compact and homogenous states -- Vermont? Oregon? Utah? -- can't go one step further to a parliamentary system. Two and a quarter centuries after the Philadelphia convention, America should be ready for some small-scale experiments in majority rule.

In the age of globalization, governmental systems are pitted, inescapably and willy-nilly, against one another. Over the past decade, it's grown harder to argue that American democracy has been delivering for its people as well as China's Leninist capitalism has for the Chinese. By the measure of economic growth, a smart authoritarian elite beats a self-negating democratic republic four days out of five. The world looks at us and sees only contentious repose.

Americans angered by the failures of our political system should be angered at the failures of our governmental system as well. The problem isn't that we're too democratic. It's that we're not democratic enough.

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