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Polarization, Compromise, and Nonoriginalism

In two recent posts, I have explored the effects of nonoriginalism in the separation of powers. Here I want to mention several ways in which such nonoriginalism has contributed to the increasing polarization of our society, by permitting the political branches to avoid having to compromise.

First, as I argued in one of these posts, the delegation of legislative authority to the President leads to polarization. Such delegations allow the President to decide on policy rather than having the Congress and the President do so through the passage of laws. In the latter case, compromise would be needed to pass laws, which would lead to less polarization. 

Second, the Supreme Court’s updating of the Constitution through nonoriginalist interpretation leads to polarization. With such updating, a majority of the Court can allow one of the political parties or factions to get its way in constitutional law. By contrast, without such updating, constitutional change would require the passage of constitutional amendments, which require compromise to secure the supermajorities necessary to pass them.  

Third, the broadening of the President’s power to enter into executive agreements rather than treaties again avoids the need for compromise. The President gets to decide alone on the agreement instead of requiring a vote of two thirds of the Senate, which can normally only be obtained through political compromise.

Fourth, the President’s ability under nonoriginalism to initiate wars on his own authority also creates the potential (although it may not have been realized yet) for polarization. If the Congress must authorize the use of force, it might do so only with constraints. Without the need for such constraints, the President can take more extreme actions on his own authority.

I do not mean to claim that departures from the original meaning of the Constitution are the only source of polarization. But I believe they are an important and neglected source.

Reader Discussion

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on December 04, 2015 at 12:34:08 pm

Kevin R. Kosar, in "How Can Congress Reassert Itself," or "How to Strengthen Congress," National Affairs, No. 25, Fall 2015, informs us how deeply Congress has invited the situation. Constituents in their states need to awaken to the losses.

After 228 years of indolence, A Civic People of the United States need to assert vital civic interest. If you don't earn your money you can't be free, and if you don't manage your governments you can't be free.

Also, it occurred to me after my post yesterday that the U. S. Supreme Court is shockingly unaware of states responsibilities. I mean what if in responding to the popular sentiments for gay marriage the opinionated nine were unaware that marriage involves states responsibilities to prevent abuse of children through adult contracts? It's a shocking thought, but the evidence indicates an objective truth I cannot guess. The U.S. Supreme Court seems to have no regard for the rights and dignity of a child.

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Phil Beaver

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.