Madison, James (1751-1836)

Subterms

    Latest story

    113 Shares179 Views

    The Supreme Court Is the Final Word on Nothing

    by

    The U.S. Constitution contains several idle provisions: words, phrases and clauses that have little to no bearing on our constitutional order as it currently exists.Let’s start here: Article 3 of the Constitution gives the Supreme Court “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” That part is obviously in effect, although most cases between states occur in the lower federal courts established by Congress. The Constitution then states that in all other cases, “the Supreme Court shall have appellate jurisdiction.” This, too, is in full effect.But then the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”This is where it gets interesting. The court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court’s appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said with regard to the Bank Bill of 1791, “An interpretation that destroys the very characteristic of the government cannot be just.”But this is nearly a moot point. The modern Congress has largely relinquished its power to regulate and structure the court. The final clause of Article 3, Section 2 is not quite a dead letter, but it is close.What is a dead letter (and which I’ve also written about before) is the Guarantee Clause of the Constitution, which states thatThe United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.The reason for the clause is straightforward. “The more intimate the nature of such a Union may be,” Madison wrote in Federalist No. 43, “the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.”But neither Congress nor the courts has ever said, with any precision, what it means for the United States to guarantee to every state a “republican form of government.” The most we have is Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.Since Reconstruction, however, no Congress has wanted to use the Guarantee Clause to protect the rights and liberties of Americans. It’s a vestigial part of our constitutional history, atrophied from disuse.The same goes for sections 2 and 3 of the 14th Amendment. Section 2 states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” It then specifies that if the right to vote for federal office is “denied” or “in any way abridged, except for participation in rebellion” to “any of the male inhabitants” of such a state, then “the basis of representation therein shall be reduced” in proportion to the denial in question.Section 3 also deals with representation. It states thatNo person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.The purpose of section 2 was to invalidate the Three-Fifths clause of the Constitution and to prevent state governments from disenfranchising Black voters. And the purpose of section 3 was to prevent former Confederate leaders from holding state and federal office. But while the 14th Amendment gives Congress the power to enforce its provisions by “appropriate legislation,” Congress has never exercised its ability to deny representation to states that violate the right of citizens to vote, nor has it used its ability to disqualify those lawmakers who have engaged in acts of rebellion or insurrection. In the wake of Jan. 6, Representatives Cori Bush and Alexandria Ocasio-Cortez called on Congress to investigate and expel members who aided the attack, but their demands went nowhere.It’s here that you can see why I think it’s important to talk about these seemingly idle provisions. As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the counter-majoritarian institutions of the American political system, cloaking their views in a distorted version of our Constitution, where self-government means minority rule and the bugaboos of right-wing culture warriors are somehow “deeply rooted” in our “history and traditions.”But the Republic is not defenseless. The Constitution gives our elected officials the power to restrain a lawless Supreme Court, protect citizens from the “sinister legislation” of the states, punish those states for depriving their residents of the right to vote and expel insurrectionists from Congress.They are drastic measures that would break the norms of American politics. They might even spark a constitutional crisis over the power and authority of Congress.But let’s not be naïve. The norms of American politics were shattered when Donald Trump organized a conspiracy to subvert the presidential election. They were shattered again when he sent an armed mob of supporters to attack the Capitol and stop Congress from certifying the votes of the Electoral College. And they were shattered one more time in the early hours of the next day, when, even after all that, hundreds of his congressional allies voted to overturn the election.As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy — and if they don’t, whether it is finally time for us to find ones who do.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    More stories

    • 113 Shares159 Views

      in Elections

      There Is Another Democrat A.O.C. Should Be Mad At

      by

      Progressive Democrats in the House of Representatives can be forgiven their anxiety about whether Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona will support the more than $1.8 trillion Build Back Better plan. Representative Alexandria Ocasio-Cortez of New York, for example, rues the two senators’ outsize influence, while her colleague Rashida Tlaib of Michigan worries that Mr. Manchin and Ms. Sinema are “corporate Dems” led astray by special interests.But if disappointed progressives are looking for a Democrat to blame, they should consider directing their ire toward one of their party’s founders: James Madison. Madison’s Constitution was built to thwart exactly what Democrats have been attempting: a race against time to impose vast policies with narrow majorities. Madison believed that one important function of the Constitution was to ensure sustained consensus before popular majorities could prevail.Democrats do represent a popular majority now. But for Madison, that “now” is the problem: He was less interested in a snapshot of a moment in constitutional time than in a time-lapse photograph showing that a majority had cohered. The more significant its desires, Madison thought, the longer that interval of coherence should be. The monumental scale of the Build Back Better plan consequently raises a difficult Madisonian question: Is a fleeting and narrow majority enough for making history?In this Madisonian sense, Democrats are tripping over their own boasts. Even in announcing that the spending plan had been scaled back, President Biden repeatedly called the measure “historic.” No fewer than four times in a single statement, his White House described elements of the Build Back Better framework as the most important policy innovations in “generations.” Nancy Pelosi, the speaker of the House, called the bill the House passed last week “historic, transformative and larger than anything we have done before.”Before the plan was trimmed from its original $3.5 trillion price tag, Democratic descriptions of it were even more grandiose. Senator Chuck Schumer, the Democratic majority leader, called the party’s initial proposal “the most significant legislation to expand support for American families since the era of the New Deal and the Great Society. If not quite Rooseveltian in scope, it is certainly near-Rooseveltian.” Ms. Pelosi said the legislation would “stand for generations alongside the New Deal and the Great Society as pillars of economic security for working families.”Madison might ask why legislation that will stand for generations should be enacted in months. The pragmatic answer, of course, is that Democrats may lose their majorities in the House and Senate next November. But that is part of the problem. Presidents Franklin Roosevelt and Lyndon Johnson passed the New Deal and Great Society with enormous, broad-based legislative majorities. The policies were so popular that they commanded at least some bipartisan support.There is a reason Madison thought it should be that way. In evaluating public opinion, he saw two distinctions as essential. The first was whether the public’s views were based on reason or passion. The second was whether the views were settled or fluctuating.According to Madison’s political psychology, passions were inherently short-lived. That was why he could say in Federalist 10 that factions would not overtake a geographically large republic: In the time it took for them to spread, passions would cool and dissipate. By contrast, opinions based on reason could withstand the test of time.Madison encapsulated his theory of democracy in Federalist 63, which pertained to the unique role of the Senate in pumping the brakes on speeding majorities. He assumed that “the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers,” just as there would be unusual moments when the people would get swept up in passionate measures “which they themselves will afterwards be the most ready to lament and condemn.”The most significant Madisonian fact is that majority rule is both a good idea and an inevitable one: public opinion both “ought” to and “will” win out in a republic. But, crucially, it will do so “ultimately,” not immediately. One original purpose of the Senate’s six-year terms was to give its members time between elections to resist public opinion. The different electoral clocks for representatives, presidents and senators require that public opinion cohere to prevail.In 1791, with the young Constitution in operation and nascent partisan alliances appearing, Madison wrote in a newspaper essay that the government owed deference to public opinion only when that opinion was “fixed” rather than fluctuating: “This distinction, if kept in view, would prevent or decide many debates on the respect due from the government to the sentiments of the people.”It is difficult to identify a case in American history of sustained, broad public opinion that did not ultimately manifest itself in public policy. Americans have been thwarted or delayed with respect to vague ideas like expanding access to health care. But they have also disagreed profoundly and deeply about what form those ideas should concretely take. When Americans have settled into an enduring consensus on particulars, they have almost always prevailed.One way proponents of particular policies encourage consensus is by appealing to public opinion. But according to Madison, the constitutional system judges majorities on their durability. A nearly $2 trillion bill that fundamentally alters relations between the government and the governed — even if in constructive and needed ways — should demonstrate broad and enduring support. A tied Senate and nearly tied House, acting in a space of months, cannot demonstrate that support on Madisonian terms.Democrats should not be overly faulted for failing to attract Republican support. At least since Democrats took the House in 2018, and arguably for longer, Republicans have been dogmatically uncooperative and uninterested in legislating.But the overuse of omnibus bills that throw every possible priority into a single measure make bipartisan support nearly impossible. Madison may have predicted the future of factions poorly. But his assumption was that coalitions would shift from issue to issue. A stand-alone bill on any one Democratic priority might well receive votes from across the aisle, as the recent $1 trillion infrastructure bill did. One reason for that bipartisan support is that isolating issues raises the cost of opposing them.In addition, the fact that one of the country’s two major political parties refuses to budge and — the decisive fact — feels no pressure from its constituents to do so is evidence that the Madisonian tests of durability and fixity have not been met. If majorities of the American people truly support the Democratic approach to social policy, the party’s candidates should be able to make that case on the campaign trail. The fact that they are trying to beat the clock instead suggests they know their support is fragile. Fragility is a poor foundation for major legislation.Polarization, especially when it falls along geographic lines, does not help. Madison, who foresaw that the enslavement from which he benefited might split the nation, warned against geographic fault lines. But to write off Republican politicians is also to write off broad swaths of voters who support them.Similarly, to blame Mr. Manchin for obstructing Democrats, as Representative Cori Bush of Missouri did in denying his authority “to dictate the future of our country,” is to ignore the fact that a 50-50 Senate gives every member of the body that power. A broader majority would deprive Mr. Manchin or Ms. Sinema of it. But because they serve as a moderating force that ensures wider support for legislation, disempowering them also risks increasing polarization.Devices like gerrymandering have the effect of exaggerating Republican support in the House. So does the geographic polarization reflected in the narrowly divided Senate. Consequently, Democrats’ slender margins in Congress may understate the degree of public support for their policies. But there is no constitutional means of registering public opinion other than elections. And it is equally unquestionable that the tragic flaw of many successful candidates for public office is exaggerating their mandates. The narrow majorities Democrats possess in Congress counsel caution instead. Mr. Biden’s mandate was largely for normalcy after four years of mania. It’s hard to make a case for being F.D.R. without a Great Depression.If progressive Democrats want to do more, they should demonstrate what Lincoln called “a patient confidence in the ultimate justice of the people.” If the people stand with them, Democrats will eventually — just not immediately — prevail.Greg Weiner (@GregWeiner1) is a political scientist at Assumption University, a visiting scholar at the American Enterprise Institute and the author of “Madison’s Metronome: The Constitution, Majority Rule, and the Tempo of American Politics.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 100 Shares159 Views

      in Elections

      When Is a ‘Majority’ Not Actually a Majority?

      by

      The problem in the American system for the principle of “one person, one vote” is that our institutions are not actually set up for political equality among citizens.Equal state representation in the Senate necessarily means that a citizen in a low-density state has greater representation — and therefore political power — than a citizen in a higher-density state. The Electoral College gives decisive political weight to the residents of the states where there is the most competition, irrespective of size or population. And the constitutional requirement that “each state shall have at least one representative” — when coupled with single-member districts and a cap on the overall size of the House — means a degree of malapportionment in the “popular” chamber as well.The upshot of all of this, I’ve written in the past, is that it is possible to elect a government that does not represent a majority of voters, much less a majority of citizens or residents. With just the right amount of geographic, educational and racial polarization in the electorate, a party could control the White House and a majority of seats in Congress without ever winning a majority of votes in either a presidential or a congressional election.I think that if you explained it way, many Americans would see this as a problem, even illegitimate. But there’s an argument that it is neither and that a party that held power under these conditions would have as much claim to legitimacy as one that held both power and a popular majority.I mention this because I recently read an interview in The Atlantic with Ryan Williams, the president of the Claremont Institute, a right-wing think tank with strong ties to Donald Trump and his movement, in which he makes the argument that minority rule is as legitimate as majority rule.I reject the premise that just because the popular vote isn’t won, you don’t possess a constitutional majority. We have an Electoral College system for a reason. Democracy, for the Founders, was a means to the end of the protection of rights. They set up a republic, not a democracy. The rule of pure numbers was never the touchstone of justice for the Founders.What caught my eye there is Williams’s use of the term “constitutional majority,” to refer to an electoral majority that does not represent a popular majority. Williams uses it to defend — even to extoll — the legitimacy of minority government, but what’s interesting is that it was first used, as far as I can tell, in defense of majority rule.Over the summer, I wrote about an unpublished 1834 letter from James Madison on the subject of “majority government.” It was a direct response to the nullification crisis of the early 1830s and the argument, made most trenchantly by Senator John Calhoun of South Carolina, that states had the right to nullify federal laws that abrogated their rights. In his letter, Madison argues that there’s no viable or impartial principle for self-government other than majority rule, especially in a nation of diverse, opposing interests: “The vital principle of republican government is the lex majoris partis, the will of the majority” and “if the will of a majority cannot be trusted where there are diversified and conflicting interests, it can be trusted nowhere.”Having said that, Madison concedes that in any system of elective government, there is the chance of choosing a government that does not represent a majority of the people. This, he says, is a problem, because the popular majority might feel oppressed by the minority in power. “That this departure from the rule of equality, creating a political and constitutional majority in contradistinction to a numerical majority of the people, may be abused in various degrees oppressive to the majority of the people is certain; and in modes and degrees so oppressive as to justify ultra- or anti-constitutional resorts to adequate relief is equally certain.”In other words, governments need popular consent for legitimacy, and when they do not have it, they run into trouble. Indeed, in Madison’s formulation, the “constitutional majority” is something of a problem to be solved, not an intended outcome of the process. And to that end, he believes the best solution to the problem of a minority government is to change the rules of the game.“Still,” he writes, “the constitutional majority must be acquiesced in by the constitutional minority whilst the Constitution exists. The moment that arrangement is successfully frustrated, the Constitution is at an end. The only remedy therefore for the oppressed minority is in the amendments of the Constitution, or a subversion of the Constitution — this inference is unavoidable. Whilst the Constitution is in force, the power created by it whether a popular minority or majority must be the legitimate power and obeyed.”If changes in population and the electorate have made it more likely than ever that Washington is dominated by “constitutional majorities” rather than popular majorities, then I think Madison would say it was high time to change the way we do elections and structure our institutions. Just because minority government is possible under a republican political system does not make it a desirable or intended outcome of the process.The “constitutional majority” is a real thing, but it’s no substitute for popular legitimacy.What I WroteMy Tuesday column was on the secession crisis of 1860 and why it is important not to dismiss the possibility of a black swan event:It’s almost as if, to the people with the power to act, the prospect of a Trumpified Republican Party with the will to subvert the next presidential election and the power to do it is one of those events that just seems a little too out there. And far from provoking action, the sheer magnitude of what it would mean has induced a kind of passivity, a hope that we can solve the crisis without bringing real power to bear.My Friday column was on majority rule in the Senate, with a big assist from Henry Cabot Lodge:Despite the great distance between his time and ours, Lodge’s argument cuts to the core of our current predicament. No, Democrats won’t get everything out of Congress that they want; their majorities are too slim and their coalition is too fractious. But they should be able to act on basic issues of governance and on points where the entire party agrees. To blame the filibuster or the parliamentarian or the reconciliation process is to avoid the truth: It is the majority that is responsible for the current state of affairs.Now ReadingRandall Kennedy on the right-wing attack on “critical race theory” in The American Prospect.Wesley Lowery on Will Smith in GQ.Chris Hayes on internet fame in The New Yorker .Ariel Ron on slavery and federal power in Slate .Sue Mi Terry on how North Korea finally got a nuclear weapon and why it won’t give it up, in Foreign Affairs.Feedback If you’re enjoying what you’re reading, please consider recommending it to your friends. They can sign up here. If you want to share your thoughts on an item in this week’s newsletter or on the newsletter in general, please email me at jamelle-newsletter@nytimes.com. You can follow me on Twitter (@jbouie) and Instagram.Photo of the WeekJamelle BouieI always like a good sign, and this is a good sign.Now Eating: Stir-Fried Butternut Squash From Madhur Jaffrey’s ‘Vegetarian Indian’I’m a huge fan of butternut squash and this is one of my favorite preparations. It is very easy to put together and makes for a great addition to any meal, and not just an Indian one. (Although you won’t go wrong with this squash, a freshly made roti and a spinach raita.) Recipe comes from “Vegetarian Indian,” by Madhur Jaffrey.Ingredients2 tablespoons olive or peanut oil¼ teaspoon urad dal (or split red lentils if you have them; otherwise, you can consider this optional)¼ teaspoon whole brown mustard seeds1 to 2 dried hot red chiles1 small onion, peeled and chopped1 pound butternut squash, cut into a ½-inch dice¾ teaspoon salt1 tablespoon dark brown sugar1 teaspoon ground cuminfreshly ground black pepperDirectionsPut the oil into a medium nonstick frying pan and set over medium heat. When hot, add the urad dal (if using). As soon as it starts to change color, add the mustard seeds and the red chiles. When the mustard seeds start to pop and the chiles darken, a matter of seconds, add the onions. Stir and fry for 2 minutes. Add the squash, then stir and fry for about 4 minutes or until the squash and the onions start to brown.Add ¾ cup of water, the salt, brown sugar, cumin and black pepper. Mix well and bring to a boil. Cover, lower the heat and simmer gently for about 10 minutes or until the squash is soft enough to pierce easily with a knife. Taste for seasoning and make adjustments if needed. When you are getting ready to serve, boil away any water that remains, stirring as you do so. More

    • 100 Shares129 Views

      in Elections

      Biden, Congress and the Eroding Separation of Powers

      by

      A curious constitutional drama unfolded in the nation’s capital last week. Having failed to pass a moratorium on evictions, members of Congress took to the steps of the U.S. Capitol to demand that President Biden impose one.For his part, Mr. Biden strode into the White House briefing room and suggested that the prerogative to make policy on the issue lay with Congress.Soon enough, though, Mr. Biden relented, and Democrats celebrated. As policy, it was a progressive victory. Constitutionally, it was both troubling and bizarre.The issue was not simply whether the moratorium was constitutional, though the federal courts have questioned the statutory authority the Centers for Disease Control and Prevention claimed. The underlying constitutional derangement pertained to the way members of Congress and the president were eager to endorse each other’s authority without exercising their own.Democrats might protest that they had no choice but to turn to the White House because Republicans would not support a legislative moratorium. That may be, but the framers would have expected the defense of legislative power to take precedence over a policy dispute.The framers assumed that each branch of government would maintain the separation of powers by jealously guarding its authority from encroachments by the others. The evictions episode was less tug of war than hot potato: Congress wanted the president to use executive authority, and the president wanted the legislature to legislate.Democrats are not the only ones refusing to defend legislative authority. Republicans denigrating the House investigation into the insurrection of Jan. 6 — a physical assault on one branch of government incited by another — are unwilling even to defend the institution bodily.The acid test of separation of powers is whether members of Congress are willing to assert their authority against a president of their own party. Democrats failed that on evictions, just as Republicans did by handing off authority to Donald Trump. Given this bipartisan consensus for presidential authority, it may be time to acknowledge reality: The concept of the separation of powers — which depends on members of Congress unifying to protect legislative power — has collapsed in the United States. We have become a de facto parliamentary system in which competing parties battle for executive power. The problem is that we have acquired all the vices of such a system but none of its virtues.A parliamentary system typically has the effects of discouraging demagogues and ensuring competence, by seasoning leaders on the journey from the backbenches to the ones at the front. By contrast, three presidents who served before Joe Biden — George W. Bush, Barack Obama and Mr. Trump — arrived in the White House as either newcomers or latecomers to national office. Parliamentary systems also feature vigorous debates with real consequences. Governments rise and fall on the basis of their legislative agendas. Debates in Congress are largely stagecraft, with actual governing being relegated to a vast executive branch empowered to turn vague laws into detailed policy.The primary vice of parliamentary systems is their incompatibility with the separation of powers. James Madison felt this separation was so important that the lack of it was “the very definition of tyranny,” even if concentrated powers were exercised benignly. Montesquieu warned that when executive and legislative power are mixed, “there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.”The separation of powers should not be romanticized. The only president to rise fully above party was the first one, and George Washington took office before parties solidified. But even after that, the fact that presidents and members of Congress were elected by different means, with different institutional loyalties, still enabled them to curb each other’s abuses.There are almost no curbs now. One might say elections control presidents, but Mr. Trump’s efforts to undo the 2020 presidential contest, which culminated in Jan. 6, showed that check is fragile. In addition, a single official who can marshal the direct power of his or supporters may be particularly dangerous, as Mr. Trump’s incitement leading up to and on Jan. 6 also demonstrated.These are palpable risks today. Between elections, presidents essentially run American government. Republicans and Democrats in Congress play the auxiliary part of either supporting or opposing whoever occupies the White House. Congress generally cedes the initiative on legislation to the executive branch, reserving for itself the role of merely reacting to the president.This obsession with the presidency also crowds out other advantages the separation of powers should provide. Legislators are chosen geographically in the United States, which ought to mean they reflect not only local interests but also the nuances of diverse views about national politics. Instead, many elections at all levels are proxies for national issues that are increasingly seen as civilizational battles. When Americans vote for members of Congress today, they are largely voting for parties that increasingly operate in lock step. In 2020, 16 out of 435 congressional districts voted for different parties for the White House and House of Representatives. That is less than 4 percent of congressional districts, down from as much as 40 percent in the 1970s and 1980s.Also lost in the collapse of geographic representation is Madison’s definition of the representative’s role: to “refine and enlarge the public views.” That presumes both acquaintance with those views and the judgment required to align them with the public’s true interest.Legislative debates now rotate around the president, often because the presidency is seen as an instrument for defending or capturing a legislative majority. That is characteristic of a parliamentary system. But because one is either for or against the president, a system that orbits the White House strips legislators of their ability to exercise independent judgment from issue to issue.If legislative issues are simply symbols of presidential fortunes, we should expect partisan gridlock: Alliances will solidify around the presidency or the majority rather than shifting from issue to issue. Democrats and Republicans may be able to push a president slightly in one direction or another, or block him or her altogether, but the presidency remains the center of attention. The bipartisan infrastructure deal, for example, originated in negotiations not between members of Congress but between them and the White House.Finally, by empowering all three branches of government to check one another, the separation of powers forces the nation to look at issues from different angles: the immediate and parochial perspectives of representatives, the national view of presidents and the constitutional outlook of the courts.The problems with abandoning the separation of powers may be difficult to see if one supports the current president, but it should not take much imagination to contemplate why you wouldn’t like having the bulk of national powers being exercised by a president with whom you disagree. Presidents now sit atop vast administrative apparatuses. They could easily abuse this power, such as by rewarding friends and punishing adversaries. The point for Montesquieu and Madison was not whether they actually did, but whether they could. And the ability to abuse power often leads to the abuse itself.The deliberate adoption of a parliamentary system would still entail these risks. But it might at least have conferred some of that system’s benefits. As it stands — with Congress unwilling to unite against even a physical assault incited by the president — we have maintained the empty shell of the separation of powers around the core of a partisan system. The result is a system capable of abusing citizens but not governing them. It would be difficult to conjure a worse combination.Greg Weiner (@GregWeiner1) is a political scientist at Assumption University, a visiting scholar at the American Enterprise Institute and the author of “The Political Constitution: The Case Against Judicial Supremacy.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 63 Shares129 Views

      in Elections

      America Has Too Many Elections

      by

      This essay is part of a series exploring bold ideas to revitalize and renew the American experiment. Read more about this project in a note from Ezekiel Kweku, Opinion’s politics editor.

      .seriestext {
      width: 600px;
      margin: 0 auto 20px;
      max-width: calc(100% – 40px);
      font-family: nyt-imperial;
      line-height: 1.5;
      font-size: 20px;
      border-top: 0;
      padding-top: 0;
      border-bottom: 1px solid #e2e2e2;
      padding-bottom: 25px;
      font-style: italic;
      text-align: left;
      }

      section#endorsement-promotext {
      margin: 25px auto; max-width: calc(100% – 40px); } .seriestext a:link { text-decoration: underline; text-decoration-color: #ccc; color: inherit; } @media screen and (max-width: 720px){ .seriestext { font-size: 18px; line-height: 25px; max-width: calc(100% – 40px); } .seriestext br{ display:none; } }
      The ability of the American political system to deliver major policies on urgent issues is hampered by features of our institutions that we take for granted and rarely think about. Take the Constitution’s requirement that House members serve for only two-year terms.Just a few months into a new administration, as the country grapples with issues of economic recovery and renewal, Congress’s actions are being shaped not by the merits of policy alone but also by the looming midterm elections. It’s not just the fall 2022 election; many incumbents are also calculating how best to position themselves to fend off potential primary challenges.In nearly all other democracies, this is not normal.The two-year House term has profound consequences for how effectively American government can perform — and too many of them are negative. A longer, four-year term would facilitate Congress’s ability to once again effectively address major issues that Americans care most about.For several decades, party leaders in Congress have come largely to view the first year of a new administration as the narrow window in which to pass big initiatives. In a midterm election year, leaders resist making members in competitive districts take tough votes. In addition, much of “policymaking” discussion in Congress — particularly when control of the House is closely divided — is about parties’ jockeying to capture the House in the next midterms.The president’s party nearly always loses House seats in the midterm elections. Since 1934, this has happened in all but two midterms. Yet it cannot be the case that all administrations have governed so poorly they deserve immediate electoral punishment.So why does it happen so regularly? Presidential candidates can make vague appeals that allow voters to see whatever they prefer to see. But governing requires concrete choices, and those decisions inevitably alienate some voters. In addition, 21 months (Jan. 20 to early November of the next year) is too little time for voters to be able to judge the effects of new programs.One of the most difficult aspects of designing democratic institutions is how to give governments incentives to act for the long term rather than the short term. The two-year term for House members does exactly the opposite.In nearly all other democracies, parliaments are in power for four to five years. Political scientists view voting as primarily the voters’ retrospective judgment on how well a government has performed. Four to five years provides plausible time for that. But the comparison with U.S. House members is even starker than focusing on the two-year term alone. In most democracies, members of parliaments do not have to compete in primary elections; the parties decide which candidates to put up for office. But since the advent of the primary system in the early 20th century, members of Congress often have to face two elections every two years.Moreover, in most democracies, candidates do not have to fund-raise all the time to run; governments typically provide public financing to the political parties. The two-year term, combined with primary elections and the constant need to raise funds individually, generates exceptional turbulence and short-term focus in our politics.When the Constitution was being drafted, many framers and others strongly pressed the view, as mentioned in Federalist 53, “that where annual elections end, tyranny begins.” At the time, most states had annual elections. Elbridge Gerry insisted that “the people of New England will never give up the point of annual elections.” James Madison urged a three-year term, arguing that annual elections had produced too much “instability” in the states. In the initial vote, the Constitutional Convention approved a three-year term, but with four states objecting, the convention eventually compromised on two years. The Federalist Papers then had to devote a good deal of energy fending off the demand for annual elections.If you think American politics is not chaotic enough, imagine if the Constitution had adopted annual House elections.One argument for the two-year term is that it provides an important check against exceptionally bad or dangerous administrations. (Certainly those who felt that way about the Trump administration were glad to have the opportunity to give Democrats control of the House in 2018.) Other democracies have found a different way to provide a safeguard against this possibility, even as their governments normally have four to five years to govern before voters are asked to judge their performance at the polls. The mechanism is a vote of no confidence; if a majority of a parliament votes no confidence in the government, a new election takes place, or a new government is formed.As interim checks on government, midterm elections and possible votes of no confidence differ dramatically. Votes of no confidence, when successful, function as an exceptional check on governments. Midterm elections are a much cruder tool; in addition to the political turbulence they bring, they routinely punish virtually all administrations. This is not to advocate a vote of no confidence, which would have vast implications for American government, but to highlight that a two-year legislative term is far from the only means to provide an interim check on elected governments.It’s unrealistic under current political conditions, but through a constitutional amendment, a four-year term for members of the House, corresponding with presidential terms, could be established. Longer terms might well facilitate greater capacity to forge difficult, bipartisan bills in the House, with members not constantly facing primary electorates. With one-third of the Senate still up for election in midterms, voters would retain some means for expressing dissatisfaction with an administration. Giving the minority party in the House greater power to initiate hearings and other measures would be another way to provide more effective interim oversight of an administration.In discussions of the Constitution’s structural elements that we might well not adopt today, the two-year term for the House is rarely noticed. (Attention is usually focused on the Electoral College, the Senate or life tenure for federal judges.)Yet as other democracies demonstrate, there is nothing inherently democratic about a two-year term. We do not recognize how distorting it is that soon after a president is elected, our politics are upended by the political calculations and maneuvering required by always looming midterm elections and their primaries.Richard H. Pildes, a professor at New York University’s School of Law, is the author of the casebook “The Law of Democracy: Legal Structure of the Political Process” and the editor of “The Future of the Voting Rights Act.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.hed More

    • 100 Shares189 Views

      in Elections

      I’m Not Actually Interested in Mitch McConnell’s Hypocrisy

      by

      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyI’m Not Actually Interested in Mitch McConnell’s HypocrisyTo make his case for the filibuster, he has essentially rewritten the history of the Senate.Opinion ColumnistJan. 29, 2021Credit…Erin Schaff/The New York TimesOn Tuesday, Mitch McConnell, now the Senate minority leader, spoke in defense of the legislative filibuster.“When it comes to lawmaking, the framers’ vision and our history are clear. The Senate exists to require deliberation and cooperation,” McConnell declared. “James Madison said the Senate’s job was to provide a ‘complicated check’ against ‘improper acts of legislation.’ We ensure that laws earn enough buy-in to receive the lasting consent of the governed. We stop bad ideas, improve good ideas and keep laws from swinging wildly with every election.”He went on: “More than any other feature, it is the Senate’s 60-vote threshold to end debate on legislation that achieves this.”It’s hard to take any of this seriously. None of McConnell’s stated concern for the “lasting consent of the governed” was on display when Senate Republicans, under his leadership, tried to repeal the Affordable Care Act by majority vote. Nor was there any interest in “deliberation and cooperation” when Republicans wanted a new round of corporate and upper-income tax cuts.If anything, the filibuster stymies that deliberation and cooperation by destroying the will to legislate at all. It makes bipartisanship less likely by erasing any incentive to build novel coalitions for particular issues. If, under the filibuster, there’s no difference between 51 votes for immigration reform and 56 votes (or even 59), then what’s the point of even trying? Why reach out to the other side if there’s almost no way you’ll reach the threshold to take action? And on the other side, why tinker with legislation if you know it’s not going to pass? When there’s no reason to do otherwise, why not act as a rigid, unyielding partisan?It’s obvious that McConnell’s commitment to the filibuster is instrumental. The filibuster on executive branch nominations of appointees and federal judges was sacred — he condemned the Democrats’ use of the “nuclear option” to get rid of it in 2013 — until President Trump needed Neil Gorsuch on the Supreme Court and then it was bye-bye to the filibuster for Supreme Court nominees that McConnell’s predecessor as Senate majority leader, Harry Reid, had left intact. If the reconciliation process didn’t exist, and Republicans needed 60 votes for upper-income tax cuts, there’s almost no doubt McConnell would have killed the legislative filibuster in 2017, for the sake of his party’s signature priority.I’m not actually that interested in McConnell’s hypocrisy. I’m interested in his history. To make his case for the indispensable importance of the legislative filibuster, McConnell has essentially rewritten the history of the Senate. He has to create a new narrative to serve his current interests.The truth is that the filibuster was an accident; an extra-constitutional innovation that lay dormant for a generation after its unintentional creation during the Jefferson administration. For most of the Senate’s history after the Civil War, filibusters were rare, deployed as the Southern weapon of choice against civil rights legislation, and an occasional tool of partisan obstruction.Far from necessary, the filibuster is extraneous. Everything it is said to encourage — debate, deliberation, consensus building — is already accomplished by the structure of the chamber itself, insofar as it happens at all.In the form it takes today, the filibuster doesn’t make the Senate work the way the framers intended. Instead, it makes the Senate a nearly insurmountable obstacle to most legislative business. And that, in turn, has made Congress inert and dysfunctional to the point of disrupting the constitutional balance of power. Legislation that deserves a debate never reaches the floor; coalitions that could form never get off the ground.In quoting Madison, McConnell frames the filibuster as part of our constitutional inheritance. It is not. The filibuster isn’t in the Constitution. The Senate, like the House of Representatives, was meant to run on majority rule.Remember, the framers had direct experience with supermajority government. Under the Articles of Confederation, each state had equal representation and it took a two-thirds vote of the states for Congress to exercise its enumerated powers. Without the consent of nine states (out of 13), Congress could not enter treaties, appropriate funds or borrow money. And the bar to amendment, unanimity, was even higher. The articles were such a disaster that, rather than try to amend them, a group of influential elites decided to scrap them altogether.For a taste of this frustration, read Alexander Hamilton in Federalist no. 22, which contains a fierce condemnation of supermajority rule as it was under the articles:The necessity of unanimity in public bodies, or of something approaching toward it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.Hamilton is especially angry with the effect of the supermajority requirement on governance.In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.Delegates to the constitutional convention considered and rejected supermajority requirements for navigation acts (concerning ships and shipping), regulation of interstate commerce and the raising of armies. Majorities would have the final say everywhere except for treaties, amendments and conviction in an impeachment trial.To make the Senate slow-moving and deliberative, the framers would not raise barriers to action so much as they would insulate the body from short-term democratic accountability. That meant indirect election by state legislatures, staggered terms of six years and a small membership of two senators per state. And at ratification, that is where the Senate stood: a self-consciously aristocratic body meant to check the House of Representatives and oversee the executive branch, confirming its appointments and ratifying its foreign agreements.The filibuster doesn’t enter the picture until years later, as an accident of parliamentary bookkeeping. In 1806, on the advice of Vice President Aaron Burr (who thought it redundant), the Senate dropped the “previous question” — a motion to end debate and bring an item up for immediate vote — from its rules. Without a motion to call the previous question, however, an individual senator could, in theory, hold the floor indefinitely.It took 31 years for someone to actually do it. The first known filibuster took place in 1837, when several Whig senators tried unsuccessfully to block a Democratic bill to reverse an 1834 censure of President Andrew Jackson and expunge it from the congressional record. Even then, the filibuster was not widely used until the second half of the 19th century, as the parties, and thus the Senate, grew more polarized along party lines.The filibuster as we understand it developed in the 20th century. In 1917, President Woodrow Wilson called on Senate Democrats to reform the filibuster as a war measure after Republicans successfully filibustered a bill to arm merchant ships. Democrats obliged and created a “cloture” rule to end debate with a two-thirds vote of the chamber. In 1975, the Senate reduced that threshold from two-thirds to three-fifths, or 60 votes in a 100-member body.Throughout this time, filibusters were uncommon. It was perfectly possible for the Senate to debate, deliberate and come to consensus without the supermajority requirement McConnell and the Republican caucus have imposed on virtually all legislation since 2009.The point of comparison for the Senate as McConnell has shaped it is the middle of the 20th century, when a conservative coalition of Republicans and Dixiecrats made the chamber a graveyard of liberal legislation and social reform. Consensus didn’t matter. Power did. And it wasn’t until liberals wrested power from this coalition — in the House as well as the Senate — that they could take the initiative and begin work on an otherwise popular agenda.There is no question the Senate is supposed to be slow, even sluggish. But it’s not supposed to be an endless bottleneck. The framers wanted stability in government, not stagnation. What we have now, with the filibuster intact, is a Senate that can barely move.This isn’t just a problem for President Biden and the Democratic Party; it’s a problem for the entire constitutional order. Our system is built around Congress; Congress makes laws, Congress holds the purse strings, Congress hands out mandates, Congress checks the president and makes sure the judiciary stays in its lane.When Congress doesn’t act, other actors take up the slack. The story of our democracy these last 10 years is, in part, the story of how a listless, sclerotic Senate broke Congress and pushed the other branches to govern in its stead, with the president and the courts making as much policy as they can without congressional input, with all the capriciousness, whiplash and uncertainty that can come from that.If you don’t like presidents governing through executive order, then you should want an active, energetic Congress that embraces its constitutional mandate to rule over the whole country and direct its government. If you want that, you should oppose the filibuster.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More