James Madison Won the Shutdown

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.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 29, 2019 at 09:16:08 am

Thank you for digging through the pile of political detritus to find the Constitutional nuggets hidden there. And thanks especially for laying them out all polished for those of us who’ve missed them to admire. Hopefully We The People will use them to avoid being diverted by such “piles” in the future

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Derek Simmons
on January 29, 2019 at 10:23:54 am

Helpful and refreshing. thanks,

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D. Bissett
on January 29, 2019 at 11:43:53 am

While I appreciate the sense of Weiner's logic, it seems to skip over how one-way the results are. The Democrats intimidate the Republicans (and vanishing "Centrist" Democrats) when they are in a nominal majority such that Congress does not work with a Repuplican president even when there is party alignment (although a case can be made for how un-Republican Trump is and un-Populist RINO's are...) - i.e. why do we still have DACA, ACA, but no Wall from the prior session of Congress? Now there is no chance of accomplishing anything worthwhile as the Dems and RINO's bog everything down to ratchet their way through more of their agenda.

Another point I would dispute is the idea that war threats do not still exist when we have the increasing militancy of Red China, Russia, and various Muslim troublemakers. This period seems more like the 20's and 30's of the last century that incubated WW2 from the messy "end" of WW1.

After seeing how Reagan's Conservatism fizzled out by the end of his terms, I have never quite regained the hope and energy I had for politics ignited by the Goldwater campaign of 1964, and this just seems like more of the downward ratcheting spiral since then when conservatives can praise how the Constitutional structure seems bolstered by those who selectively "support" it in order to further degrade it in the larger sphere of our country's venture in self-rule. I am reminded more and more of the saying Paul Harvey reiterated when closing out his later broadcasts: something along the lines of "without self-discipline there can be no self-rule".

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Image of R O
on January 29, 2019 at 11:48:32 am

This is a very thoughtful and reassuring piece. As a Senator for whom I worked remarked, we should take great comfort in knowing that one person cannot do very much in Washington.

Having said all that, I would differ with the assertion that "Congress won." In my view, Congress failed. Legislators have a duty to legislate, particularly the duty to fund what Congress has wrought. The fact that legislatures are made up of multiple persons assumes that there will be differences of views requiring some give and take and accommodation of various views among the members to get the job done. This Congress failed for too long, and Congress has failed too often, to do that.

Failure by Congress to fund the agencies of government that Congress created is a failure of high degree. No one else has that responsibility or opportunity. Congress waiting around for a President to concur is an inappropriate dereliction of its duty and is no excuse for the dereliction. Either it must find a way to pass something that the President will not veto (since he cannot change any legislation), or find a solution that has enough legislative support to override a veto. Just letting funding for a major portion of the government expire is in no way an example of Congress "winning." It is failure.

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Wayne A Abernathy
on January 29, 2019 at 11:54:12 am

Weiner's structural argument is correct.
BUT, please, Nancy Pelosi as a defender of the Constitution - here we go a tad bit too far!

Did she not say that "It was our [PARTY] unity that" won the battle.

IT had nothing to do with institutional prerogatives - only with PARTY Loyalty, even if one deployed an institutional prerogatives to further party loyalty.

"The CONSTITUTION, are you KIDDING me" sayeth the Nitwit from Napa and now we are to offer up praise to this (rather effective) Party hack.

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Image of gabe
on January 29, 2019 at 18:48:17 pm

Weiner cared not about civic integrity when he wrote “. . . in a standoff with the president on an issue of authority, the Congress, and thus the Constitution, won.” The Constitution, the president, and the Congress serve We the People of the United States---not the majority or American traditions, but the living fellow citizens who collaborate for freedom-from oppression under the U.S. preamble.

I don’t think Madison liked the U.S. preamble, and in this post, Weiner seems to feel beyond or above fellow citizens who trust-in and commit-to the agreement that is offered fellow citizens in the preamble.

Together, Congress and administrative regimes hold hostage We the People of the United States as defined in the preamble to the U.S. Constitution (the U.S. preamble), for example, denying them a wall on the southern border for at least three decades.

“Constitutionalists” are substantially at fault for the British colonial bemusement that keeps the people in social conflict rather than in civic collaboration; maintains the church-state partnership rather than separates church from state.
American political regimes perpetuate “God bless America” mimicking “God save the queen” because Chapter XI Machiavellianism works, despite Niccolo’s 1513 irony.

However, freedom of theism is currently in conflict with collaboration to discover the-objective-truth, a tacit purpose and goal of the U.S. preamble’s civic, civil, and legal agreement. Those who would assert the weakness of the U.S. preamble may consider the fact that on June 21, 1788, the 1774 Confederation of States legally ended, and the people in nine states established the rule of federal law. The other four states could remain free and independent, as ratified in the 1783 Treaty of Paris, or join the Union. Two did in time for operations to begin on March 4, 1789.

Weiner sadly overlooks that the Pelosi social democracy hurt some 0.8 million wage earners, which affects perhaps four times as many support employees and another two times as families, or over 6 million Americans.

James Madison, in Federalist 10, warned of a coalition of minorities that form a majority and undo the representative rule of law. The framer who recognized a problem but did not resolve it is no friend of the rule of law. Worse, in Memorial & Remonstrance, his group said that a citizen must first be considered a subject of the writers’ god: “the Governour of the Universe.” There’s no place for theism, an adult private pursuit, in collaboration for civic integrity. In my eighth decade, I cannot be persuaded to evaluate anyone’s god: I can only respond to collaboration for mutual, comprehensive safety and security (in this case, build the wall).

Constitutionalists honestly try to preserve tradition, but honesty is insufficient. We the People of the United States need the civic integrity to pursue statutory justice. Pelosi and other tyrants may reform by considering themselves first fellow citizens and therefore collaborate for statutory justice.

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Phillip Beaver
on January 29, 2019 at 21:00:44 pm

I agree. What’s needed is self-discipline.

However, “self-rule” is a colonial British idea (http://cdaworldhistory.wikidot.com/self-rule-for-british-colonies). America, after 230 years neglecting the U.S. preamble, desperately needs revolutionary, psychological reform from British influence. Foremost in importance is amendment of the First Amendment so as to protect the pursuit of civic integrity rather than to support theism or any other religious belief or mystery.

In 1863, Abraham Lincoln saw the civic, civil, and legal power of the U.S. preamble. However, 2019 fellow citizens might be closer to the establishment of civic integrity if Lincoln had said at Gettysburg, “. . . and that [discipline] of the people, by the people, for the people, shall not perish from the earth.”

Even more importantly, fellow citizens must have a standard by which discipline is discovered. Physics and its progeny like biology, psychology, math, and fiction that imagines discovery of the unknown yet does not pretend that imagination is evidence sets the standard. Through physics and its progeny humankind discovers the-objective-truth by which “truth” and all its modifications are judged.

Rudyard Kipling wrote a short story which seems a metaphor for Albert Einstein’s 1941 suggestion that civic people do not lie so as to lessen misery and loss. In “The Man Who Would Be King,” the village men elect the king as their god. The village women oppose the consequences and cut the king to expose his blood.

These ideas: at least 2/3 of fellow citizens trusting-in and committing-to the U.S. preamble to order civic, civil, and legal concerns; collaboration to discover the-objective-truth and how to benefit from the discovery; collaboration to pursue statutory justice, impossible as its achievement may be; reform from American traditions founded on British political philosophy; and separation of church from state should . . . would empower a civic culture that develops individual happiness with civic integrity.

Writers in this forum are the candidates who can make an achievable better future happen fastest.

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Phillip Beaver
on February 01, 2019 at 21:35:25 pm

[…] Weiner, author of the best book about Madison’s thought (“Madison’s Metronome”), rightly celebrates the way the 35-day government shutdown ended: The House “stared down the presidency and won.” […]

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Image of Only Democrats can save this president - Black News
Only Democrats can save this president - Black News
on February 03, 2019 at 22:00:45 pm

[…] Weiner, author of the best book about Madison’s thought (“Madison’s Metronome”), rightly celebratesthe way the 35-day government shutdown ended: The House “stared down the presidency and won.” In […]

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Image of Only Democrats can save this president – The Washington Post – Slinking Toward Retirement
Only Democrats can save this president – The Washington Post – Slinking Toward Retirement

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.