The opponents of the Electoral College, in attempting to undermine support for the institution, have painted it with an unfair half-truth.
Don’t look now, but even as the punditry complains of peak dysfunction, the Constitutional machinery may actually be creaking back to life. The shutdown imbroglio was Woodrow Wilson’s nightmare, which ought to make it every constitutionalist’s dream. The issue is not which party won. Partisan disputes come and go. The encouraging development was institutional: the House of Representatives stared down the Presidency and won.
To grasp the constitutional importance of the moment, it is necessary to set aside partisan or policy preferences. Every constitutionalist, even those who wished a different outcome, can celebrate the proper functioning, for the first time in nearly a generation, of what Wilson stigmatized as Congressional government. Wilson’s complaint was the inefficiency of legislative supremacy, which is also the complaint of those who wanted the government closed or an emergency declared in order to get a border wall immediately. Wilson also argued that Congressional government produced policy that did not comport with the Progressive fiction of rational politics.
Conservative commentary on the shutdown’s end has been divided between, on the one hand, fantasists who imagine a masterwork of presidential chess over legislative checkers and, on the other, those appalled that Nancy Pelosi got the upper hand over a Republican President. One conservative talking head tweeted: “It’s President Trump, not President Pelosi. Act like it.”
Yet this is the whole point. Trump did act like a president, which is to say a constitutional actor subservient in policymaking matters to the will of Congress. Under the terms of Article I of the Constitution, he could not lay a brick of the wall without Congress’ appropriating funds for it. (To his credit, Mitch McConnell appears to have resisted an emergency declaration that would have spent on the wall without legislative authorization.) To say Pelosi should not win because she is not president is to say that title belongs to whomever sits atop the regime. The presidency does not and was never intended to.
Pelosi, meanwhile, did what no one since Newt Gingrich has: She acted like a speaker of the House laying a claim to primacy in policymaking. What she knew was that the Congress held the cards, as, in a regime emphasizing deliberation, it should. Only Congress can fund the government; in this case, Congress was willing to. The president necessarily owned the shutdown because of weak public support for his central demand and, importantly, the fact that his authority in legislation is limited to reaction. He had no power to force the wall, only the power to hold other funding hostage.
Pelosi also used institutional leverage, such as informing the president there would be no answer if he knocked at the door of the House chamber for a State of the Union spectacle from which he had been disinvited. This was institutional hardball between branches not just with respect to policy but, more important, with respect to authority. Madisonians should rejoice.
Constitutional conservatives in particular should take care not to be distracted by the fact that Pelosi, who is certainly no originalist, prevailed. The relevant point is that Madison did. He predicted that Congress would be the locus of power in the regime and that the House, in turn, would be the fulcrum inside the Congress. Madison also assumed—emphasis on “assumed”; politics did not make sense to him otherwise—that members of each branch would behave institutionally rather than ideologically, defending power before party: They would, in other words, care more who built a wall than whether it was built. In this sense, the precise contours of Pelosi’s constitutional views are less important than the fact that she behaved in her institutional interest, the spring that powers the regime.
For believers in the doublespeak of outcome-based constitutionalism, precisely who builds the wall is a silly question. The point for them is that, by hook or constitutional crook, it should be built. On this reading, the Constitution is a weapon for imposing the policy outcomes one prefers: Power should be located wherever those with whom one agrees reside. Democrats did this in the case of DACA, Republicans—for 34 days anyway—in the case of the wall. Both were wrong.
Call them all opportunists. Certainly many—like Lindsey Graham, the Chameleon from South Carolina who somehow pulls off moralism and opportunism simultaneously—were. Pelosi can be accused of the same given her failure to oppose DACA when President Obama imposed it. In this case, there is the constitutional comfort that institutional opportunism prevailed. The alternative, which Madison called “the very definition of tyranny,” is to jettison the separation of powers and subject ourselves to presidential whim. Constitutionalism only works when those satisfied with current whims have sufficient political foresight to know a time will come when an executive’s agenda will displease them.
It is not happenstance that this instance of Congressional assertion coincides with President Trump’s largely appropriate de-emphasis of the nation’s war footing abroad. In the expanse of time between World War I and now—Robert Nisbet’s Seventy-Five Years War spilled into a full-on century—there has been one interval of relative peace: the period between the end of the Cold War and the beginning of the war against terrorism. That is exactly the time Gingrich controlled the agenda in Washington.
The presidency depends in no small part on pageantry and symbolism, which is why depriving Trump of a spoken report on the state of the union was such a hard blow. When the nation is at war, the most grandiose powers seem—scare quotes around “seem”—to reside with the president. At peace, the Constitution returns to baseline, which is congressional government. This might not surprise the Framers. Madison called war “the true nurse of executive aggrandizement.” By contrast, the controversies that peace brings fall almost entirely within the ambit of Congress. The founding generation could predict legislative supremacy on the assumption that war would be deviant and peace would be the norm.
The wall might be a permanent structure, but it is a transient controversy. Constitutionalism is the far larger prize. For those who want a wall, the answer is to convince a persistent majority of Americans to support one. If they do, the public’s deliberate opinion will be reflected in either a House that strikes a bargain on the topic or in a change in control of the House in 2020. The constitutional regime is better at registering the views of this kind of enduring legislative majority than of a partisan coalition attempting to impose itself in 34 days.
That regime, not either party or either view on the wall, is what has just prevailed. A good test of constitutional sincerity would be whether those who wish Pelosi were not Speaker of the House can nonetheless celebrate the fact, in a standoff with the president on an issue of authority, the Congress, and thus the Constitution, won.