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It may be morning in America, but we still have the same defective Constitution

By Jack M. Balkin

I'm still elated by the results of the election and the fact that, at long last (and several weeks late) Barack Obama was finally inaugurated. But no one should doubt that among the problems we face in this country is a political system that is structured to create, if not out-and-out gridlock--some legislation does in fact get passed, after all--then a structured incapacity to confront serious problems head-on, especially if any proposed solutions involve serious sacrifice by one's own constituents. When Tip O'Neil so memorably said that "all politics is local," he was offering a profound statement about the polity generated by the Constitution, in which ever single member of Congress is indeed a parochial local representative when push comes to shove.

Writing in the Washington Post, E.J. Dionne notes the abject fear that is sweeping the country.

"[T]he point is not the numerical count of Republicans who vote for this or that. It's whether frightened citizens sense that government is working.

"People want the basic stuff fixed," said state Rep. Vernon Sykes, a Democrat who chairs the Finance and Appropriations Committee in the Ohio House. "They don't have a romantic notion of bipartisanship. They just want people to come together to solve problems."

But do we have a system that encourages this? Just look at the some of the absurd politics surrounding the stimulus bill, where three Republican senators, two of them from the great small state of Maine, were able to extort their own policy preferences because of the indefensible voting rule in the Senate that requires 60 votes even to bring a bill to the floor for a vote. Part of the problem, to be sure, is that Obama was insistent on demonstrating at least a modicum of "bipartisan" support, so he wasn't willing to dare Sen. Collins, Snowe, and Specter actually to join in a filibuster of the bill and demonstrate to the country the abject irresponsibility of the contemporary Republican (congressional) party. But look at the House, where Obama, who got not a single Republican vote, didn't have to worry that that affected the possibility of getting his bill through at all.

There are many bicameral systems around the world, but extremely few have adopted the American practice of giving an absolute veto to each house over legislation passed by the other. Most systems have a way of breaking deadlocks. We do not, which means that what Woodrow Wilson called "a small band of willful men [and now, glory be, women]" can hold the rest of the country hostage to their own parochial political desires. In this respect, we are no better than Israel, which is widely taken to be one of the worst political systems in the world because of the totally disproportionate power given to relatively small parties who can take advantage of their crucial importance in providing the marginally necessary votes to construct a government.

One could, of course, offer the recent unpleasantness in California as another perfect exhibit of a truly awfully designed constitution, inasmuch as it gives 1/3+1 in each house an absolute veto power over the budget. I note a fascinating article that appeared in Sunday's New York Times about the diminished enthusiasm by the U.S. for what might be termed the "international democracy project." One may or may not believe that the U.S. should strive to bring "democracy" to other countries, but it would certainly be wonderful if we adopted a more self-critical spirit and asked whether we have a truly defensible system of "democracy" here at home.

Lest any of you think that my concern is exclusively about Republican mossbacks, let me also say that I am most disturbed by the fact that "we" seem to accept, without any significant public discussion, that the decision on whether we engage in a de facto escalation of the war in Afghanistan will be made by our newly elected and inaugurated constitutional dictator. My own view is that any authorization for the initial entry into Afghanistan is now irrelevant, for there is no serious argument that Al Qaeda is threatening to take over Afghanistan and use it as a staging area. It's time for Congress to state, loudly and clearly, whether they wish to declare war on a terrible group of Islamic extremists who present little or no threat to American security interests or, with whatever degree of appropriate lament, order a withdrawal.

It's obviously not the Constitution that prevents Congress from taking real responsibility for the potential quagmire in Afghanistan, but, rather, a long train of presidential actions that have led "us" to believe that the Commander-in-Chief really has carte blanche in deciding whether or not to take the country further into war.

Full post as published by Balkinization on February 24, 2009 (boomark / email).