Carefully assessing judicial politicization gives us fresh reasons to doubt the attitudinal model.
Whatever the outcome of this year’s election, conservatives and other friends of American constitutionalism have our work cut out for us. The Republican candidate for president has not shown much familiarity with or interest in the workings of our constitutional system. And the Democratic candidate (as usual) has evinced a desire to continue, with judicial backing, a transformation of that system—one that further enhances executive and regulatory power while weakening the powers of Congress.
And causes for worry on this front are by no means limited to the presidential contenders. They are evident in our institutions, and not only those dominated by the Left. Indeed, the willful weakness of the Congress (which has been largely run by Republicans for two decades) and of the state governments (most of which are run by Republicans) may be the most significant problems our system confronts. Congress routinely delegates its power and abides executive overreach for policy or political ends. And while some state leaders have certainly pushed back against federal overreach at times, on the whole the states have accepted the bargain of “cooperative federalism”: From healthcare to education to transportation and beyond, federal dollars flow to the states in return for power flowing to Washington.
In searching for solutions to a constitutional imbalance, it is natural that we should consult the views of the system’s architects, the Framers of the Constitution. We are accustomed to looking to them for wisdom about the interaction of human nature, power, and politics, and so for a sense of how our system should work. Our usual way of doing so is to compare their descriptions of what the Constitution was designed to do with what our government now does. But it might be worth our while, in this challenging time, to also think a bit more about the assumptions they made regarding the proper attitudes of the people who work in the institutions they created. We might then get a sense of what potential reforms could help imbue policymakers and others with these attitudes.
To do this, we would be wise to consider not just what the Framers got right about how the system would work, but also what they seem to have gotten wrong. Over the past few years, I’ve had the privilege of studying portions of The Federalist with groups of talented undergraduates (and this summer also with a group of smart young congressional staffers), with an eye to how Publius regarded political actors. We have explored in particular what assumptions about human nature underlay the Founders’ expectations—some fulfilled, others not—of how their newly devised system would function.
Two of Publius’ most boldly stated expectations—one expressed by James Madison and the other by Alexander Hamilton—have held up particularly poorly. Each involves an assumption about institutional relationships in the constitutional system that is rooted in an assumption about human nature. The first is Madison’s assertion, in Federalist 51, that “In republican government, the legislative authority necessarily predominates.” And the second is Hamilton’s assertion, in Federalist 17, that “It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.”
These are confident and essentially unqualified assertions. And they speak directly to two of the most significant problems with our constitutional system today: the weakness of the U.S. Congress relative to the other two branches of the federal government, and the weakness of the 50 state governments relative to the federal government. Both problems flatly defy the Framers’ expectations. Hamilton and Madison were not expressing hopes or aspirations but assumptions upon which some of their constitutional theories were premised, and yet today we would have to say that those assumptions are not correct. To see why, we should consider their roots.
Hamilton’s view that the states would tend to be more powerful than the federal government rests on an exceptionally interesting and revealing assumption about the souls of politicians—and especially of those who would rise to national politics. Answering those who worried that the federal government created by the new Constitution would tend to invade the prerogatives of the states and take over their work, Hamilton writes of how unlikely it is that national political leaders will want any part of the mundane, everyday kinds of administrative tasks engaged in by the state governments.
As he puts it in Federalist 17:
Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government.
It is difficult to overstate just how odd this argument sounds to our 21st century ears, and it has surely proven to be wrong. Hamilton is not saying that politicians at the national level should not involve themselves in the governance of mundane matters; he’s saying, more than a little blithely, that there is no danger they’ll even want to.
That is a serious failure of imagination, surely rooted at least in part in Hamilton’s own Napoleonic ambitions. But it suggests that the federal government sometimes intrudes into the kinds of governing questions that the Framers thought would remain with the states not (as one might have thought) out of excessive political ambition or willfulness, but out of something like the opposite: a kind of failure of ambition, a narrowness of vision that keeps them from seeing what the national government should be about.
A similar dynamic is at work in Madison’s prophecy that the legislative branch would necessarily be the prevailing one in our system of government. The father of the Constitution was guided by that assumption as he thought about what ought to be the relative strengths of the federal branches, and it led him to look for ways to weaken Congress while reinforcing the executive.
As Madison writes in Federalist 51:
In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.
This, too, has to strike the modern ear as quite bizarre, an alternate universe from the one we inhabit.
Notice how closely this prophecy, and its failure to materialize in our time, resembles Hamilton’s: Both of them rest on an assumption of intense ambition among federal officeholders. Our constitutional system is designed to contain and channel that ambition—to force it into a constructive conflict with the ambitions of other constitutional actors so as to restrain them all and enable them to reach collective judgments indirectly.
In the absence of such ambition, the system breaks down.
And the two prophecies have more than that in common: It is in part because the federal government today involves itself in the minutia of administration (including “the administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature,” and much more besides) that the administrative state has grown, and in turn has weakened Congress not only by empowering the executive but also by diminishing the role and therefore also the ambitions of legislators.
Meanwhile, as the federal government has usurped for itself some of the key prerogatives of the states, political leaders at the state level have themselves lost some of the motive for ambition for their own institutions and stations. They have willingly yielded power to the federal government in some key arenas (nowadays education and health above all) just as members of Congress have yielded power to the executive.
The imbalance of our constitutional system is therefore in some meaningful part a function of the miniaturization of the ambitions of all involved. This is not how we are used to thinking about our problems, but it is a way of thinking about them that might help us consider some mitigating reforms. Ambition is not, it turns out, simply a natural fact—it is also a response to institutional circumstances. As Madison himself put it (also in Federalist 51): “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others” (emphasis added).
Ambition itself, a motive to protect one’s prerogatives, must in some part be given to the people involved, not just expected of them.
What might that mean now? First, recovering Congress’s self-respect and ambition is essential, and could be pursued in a number of ways.
Reform of the budget process to make it more of a legislative process (one divided into small, discrete, concrete steps) rather than an executive process (one consolidated into a single, large decision) would help give Congress more ownership of it, and therefore some pride and ambition about it. It would also bring the functioning of the administrative state more under congressional control. So would a recovery of the dignity of the proper work of the national government—the exercise of the powers enumerated in Article I of the Constitution. Hamilton’s insight suggests that a lack of respect for that work may have much to do with Congress’ inclination to pursue other work.
At the same time, a recovery of the ambition and self-respect of the states could be advanced by curtailing Washington’s meddling. A recovery of a more robust federalism, in which state and federal roles are more strictly distinguished, would not only improve the outcomes of public policy but also help rebalance our system of government. And it would help do both by giving state policymakers more ownership of (and therefore more pride in) the mundane work of everyday governance, even as it redirected the attention and the self-regard of national political leaders toward national questions.
These are, of course, only the most general lineaments of reform. And there has been no shortage of work done on what a reassertion of the Congress and a decentralization of public policy could look like at the level of policy particulars. What seeing these questions through the lens of the Framers’ false prophecies makes clearer, however, is that a shortage of constitutional ambition is an important element of the dysfunction. Rekindling it will be crucial to fixing that dysfunction.
Such a rekindling is a long-term project, one that does not seem likely to be greatly advanced in the near term given our electoral options this year. But elements of it could certainly be advanced by congressional and state actions. Nor is having a long-term objective a bad thing. One advantage of seeing our challenges in terms of the delicate balance of our constitutional system is that it helps us grasp the system’s potential for flexibility and endurance—and that should give us grounds for hope. It should give us a way to resist the misguided sense of despair and the apocalyptic hysteria that seem to arrive like clockwork during every election cycle—and in this one more than most. That, too, is a gift the Framers gave us.