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Is Our Government Dysfunctional?
The months before the 1787 Federal Convention in Philadelphia found James Madison cramming as if he were about to take an exam. Studying as if his life depended on it, Madison reviewed the entire history of human government, focusing especially on the democracies of the classical world and modern republics. Madison also devoted considerable time to formulating a detailed critique of the way American government had worked to that point under the state constitutions and Articles of Confederation.1
In April, just prior to the opening of the Federal Convention, Madison produced a remarkable evaluation of American government called âVices of the Political System of the United States.â2 He set forth eleven separate points, chiefly having to do with the failures of the state governments. Madison believed that the states were constantly encroaching, violating, and trespassing on the rights of the federal government; other state governments; and, indeed, other nations.3 In addition, the Articles of Confederation could not operate as a genuine âPolitical Constitutionâ for the United States because it failed to give the national government the ability to coerce the states and so enforce its judgments.4 Finally, state legislatures in particular were truly out of control. They had passed multiple laws abusive of liberty and kept changing those laws so rapidly that no one could keep up with them. Many of these laws were clearly unjust, at least in Madisonâs judgment.5
Few would deny that Madison identified some of the faults of the prevailing system of government. Given the serious nature of these faults, it is plausible to say that Madison had shown his system of government to be âdysfunctional.â Thinking about the task Madison set himself can help orient us in assessing the claims of many thoughtful observers that Americaâs political and constitutional system today are in a similar state.
Letâs assume that you had to produce a contemporary version of Madisonâs âVices.â Do you know what you would say? Given the seemingly universal dissatisfaction with the way American government operates, particularly as shown by how little trust most Americans have in their government, there is no doubt that many citizens could elaborate their own eleven-point (or more!) lists. We will begin our inquiry by sorting through indictments of the American system of government by journalists and scholars. But Madisonâs achievement should inspire caution, for consider: What sort of knowledge would be required to duplicate it today? Madison believed he needed to review the history of government from the fifth-century b.c.e. Lycian Confederacy onward as well as consulting the great political treatise writers of his age, such as Montesquieu and Grotius.6 It is all very well to complain about the way our government works (or fails to work), but doing anything today similar to what Madison did in 1787 would surely involve years, perhaps decades, of study.
Consider another point: Do we have Madisonâs confidence that it is open to us to design the constitutional system anew? One of the most famous quotations from the founding period comes from the very first number of The Federalist, the great work written by Alexander Hamilton, John Jay, and, of course, Madison himself. This was by Hamilton, who observed, âIt has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.â7
The authors of The Federalist were obviously proponents of the view that it is possible to respond rationally to the flaws of a government by offering reforms. We should further observe that these framers were advocating not any garden-variety reforms but a fundamental alteration of their countryâs constitutional structure. The general notion that we can rationally criticize our system of government and advocate meaningful systemic reforms remains popular today. Some might even consider this to be a matter of common sense and wonder how it could be questioned. Notice, however, that this kind of thinking assumes we live in a designed systemâin a government established, as Hamilton says, from reflection and choice.
Do we live in a designed system? There is no shortage of scholarly works based on the premise that a careful study of the logic of the original constitutional design will pay dividends in the present. Yet for every work insisting on the contemporary relevance of the original design, there is another reminding us that the system we actually live in is the product of more than 200 years of historical practice.8 Relatively uncontroversial examples of major changes to our system of government not anticipated at the founding include political parties, the Reconstruction amendments, and the expansion of the right to vote. Somewhat more controversial examples (in the sense that some deny their legitimacy) of major informal constitutional changes might include the delegation of power to the administrative state, the expansion of the power of the national government vis-Ă -vis the states, and presidential war powers. Many scholars would also point to the U.S. Supreme Courtâs interpretation of the Constitution amid myriad historical adaptations and practices as having changed our political and constitutional system over time (throughout the book, I use the terms âconstitutional systemâ and âconstitutional orderâ interchangeably; I define the latter term in the last section of this chapter).
Some scholars are so impressed with the reality of a practice-based constitutional system that they hold we have transited to a British-style âunwrittenâ constitutional tradition.9 We need not go this far to appreciate that there are problems with simply assuming we are living with the same system the framers designed. The point for now is this: if we accept that we are living in, at a minimum, a hybrid political and constitutional system, partly designed and partly the product of more than two centuries of historical change, then this complicates considerably the task of producing a Madisonian âVicesâ critique in the present. It makes it more difficult for us to place ourselves in Madisonâs position and imagine how we would begin the system anew. More to the point, it makes it difficult both to pin down the causes of any systemic problems and to anticipate the consequences of any proposals for constitutional reform.
Letâs consider one final aspect about trying to be Madison in contemporary times before we turn to some leading recent assessments of our political and constitutional system. What does criticism of our dysfunctional politics and political system have to do with the Constitution? For his part, Madison was certain that the Articles of Confederation was an inadequate framework for government. Indeed, it appears that after the Constitution was adopted, few people waxed nostalgic about government under the Articles. We are on the other side of that debate, and so for us it is settled that the Articles was unworkable. An entirely new constitution was called for and it is the Constitution ratified in 1787â1788 that prevails today as our supreme law (although it has been amended twenty-seven times). The point of the question, however, is that even if we are dissatisfied with our public officials and the way they conduct politics and even if we are convinced that we have advanced a sound critique of the entire âpolitical system,â do those defects extend to the Constitution? Are we today as sure as Madison was that a significantly amended or even new Constitution is required? The typical answer Americans give is no. At the beginning of his interesting set of Socratic dialogues with ordinary citizens about constitutional reform, for example, Christopher Phillips observes that âas dysfunctional as people of most political persuasions believe our government is, they are just as convinced that the Constitution still works.â10
Amid all the talk of dysfunctional government, this last point suggests that we should focus on whether the critiques of government dysfunction justify major changes to our system of government. To put it another way, assuming the political and constitutional system is dysfunctional, is that something we simply have to live with, perhaps while the system muddles through, or does it demand our immediate attention and motivated commitment to significant constitutional reforms?
To summarize this introductory discussion, we should bear three points in mind in assessing claims that our system of government is dysfunctional. Inspired by the task Madison set himself, we should consider (1) whether we have the appropriate knowledge to diagnose and remedy the problems of our political and constitutional system, (2) whether we have confidence that we can fundamentally alter that system without risking unforeseen negative consequences, and, finally, (3) whether there is a reasonably close link between dysfunctional government and the Constitution itself.
Critiques of Dysfunctional Government
Letâs keep these points in mind as we examine recent influential critiques of our contemporary politics and system of government. It is useful to divide them, somewhat roughly, into three groups:
â˘domestic critiques
â˘international critiques
â˘theory critiques
Domestic Critiques
Domestic critiques are those that most clearly advance claims of dysfunctional government. They argue that the political system no longer works for most Americans and highlight the increased polarization of American politics; the âhyperpartisanshipâ that prevails in the core of the Democratic and Republican parties, especially in Congress; and the gridlock in government that results. The best example by a journalist is Ronald Brownsteinâs insightful and well-researched The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America.11 Another example in the same genre is the more impressionistic book by New York Times columnist Tom Friedman and noted political scientist Michael Mandelbaum, That Used to Be Us.12
It is important to understand that these authors are not criticizing political polarization and partisanship in the abstract. They link these phenomena to a series of pressing policy issues that they believe have gone disturbingly unaddressed. It is typical for domestic critics to stress that they are concerned just as much with poor policy outcomes as with a defective political process. Brownstein begins his book by listing eight policy areas in which he claims the nation has failed to make progress for years on end:
1.Reducing U.S. dependence on foreign oil
2.Balancing the budget
3.Providing health insurance for uninsured Americans
4.Immigration policy (a plan to improve border security and provide a way to deal with 12 million illegal immigrants already in the country)
5.Adjusting Social Security and Medicare benefits and taxes in a way that future generations can bear
6.Taking steps to provide greater security for middle-class Americans in an era of global economic competition
7.Creating a strategy to reduce greenhouse gases
8.Deciding how to properly fight the threat of terrorism13
We will analyze the issues on Brownsteinâs list in more detail later in this chapter. Although a number of these points relate to foreign policy, I call his critique âdomesticâ because he is fundamentally concerned with how the fabric of domestic politicsâthe nuts and bo...