Routing a political dispute to the courts is the constitutional equivalent of appealing to one’s parents for relief from the bully on the block.
A friend from high school, distressed by the results of Tuesday’s balloting, circulated a prayerful plea that President Obama’s re-election indicates “our nation is in a sinful state” whose consequences we must “suffer” until we repent our “wicked ways.”
This is what Robert Dahl identified as the phenomenon of intensity in politics. Willmoore Kendall and George W. Carey identified its solution: the constitutional regime delineated in The Federalist—which means, Houston, we have a problem.
Dahl’s intensity problem amounts, essentially, to this: If a majority wants something ambivalently but a minority wants something else intensely, majority rule hands the decision to the former but fairness and the health of a political order counsel consideration of the latter. Now, for the record, both sides in the presidential election felt strongly about the result. But laying that to one side, as Kendall would say, the fact remains that some considerable proportion of the country will spend the next four years intensely disaffected with the results of the election and likely unable to reconcile themselves to the institution at the center of government: the White House. Some degree of dysfunction is sure to ensue.
Kendall and Carey observe that Publius anticipates the intensity problem by advocating deliberative government that defers decision-making, embraces political diversity and—the kicker—prevents capture of the entire regime by a bare majority. Among other arrangements, they refer to separation of powers, which has eroded to dust, and bicameralism, which may be constitutionalism’s last bulwark but is probably an inadequate one.
Thus the problem, or one, with disaffection in contemporary politics: presidential government. Placing the presidency at the center of the regime ensures precisely what Kendall and Carey note that Publius spares us: a winner-take-all government. If the bulk of the regime’s authority—making and executing policy, both foreign and domestic—is deposited in the Executive Branch, those who do not vote for the President in any given election have no voice at the center of power.
It is not so in the first branch. Congress is a subtler, suppler institution far more capable of registering the full diversity of the country’s views. Anyone in the mainstream of American politics can always be satisfied his or her views are substantially represented on Capitol Hill. That would have been especially so without the party system that Publius does not anticipate, but even with it, a Republican in, say, a Democratic district still has a substantial voice in Congress, and vice-versa.
Moreover, outcomes in Congress can be the product of compromise rather than rigid partisan power. Members cross the aisle, a phenomenon unique to America’s representative system when it is properly functioning. Moderation can prevail. One result of this, of course, is everything Americans purport to hate about Congress: compromise, decentralization, and That Which No Political Scientist Can Bear—a lack of strict textbook rationality in policymaking. It is, in short, messy. So is America.
The Presidency, by contrast, is clean, quick, efficient, and it is all these things in no small part because it is exclusionary rather than representative. The inertia of the bureaucracy aside, the Executive functions on the whim of a single individual who—promises to “represent all the people” aside—nonetheless is elected to pursue an agenda to which nearly half the people has usually registered opposition.
Those half are without representation in what is, under Presidential government, not only the most powerful branch of government but the decisive center of action: the gas pedal to Congress’ only occasionally applied brake. Hence a toxic combination of disappointment and disaffection. Combine that with what I recently suggested in this space were the disproportionate stakes of presidential elections—that is, simply too much power changes hands—and it is not surprising that the opposition party, whether Democrats or Republicans, has developed a dysfunctional habit of despising incumbent Presidents. And that hatred rarely, it should be said, pertains to the actually great questions of war and peace that merit such strong emotional responses. Instead, seeing someone of the other party take the Presidential oath seems to provoke an atavistic reaction akin to seeing one’s girlfriend on another teenager’s arm at the prom.
Those enduring that feeling now claim—remember, the stakes of presidential elections are routinely inflated—they are mourning the demise of constitutional government. If they mean it, a task for them in the wilderness might actually be to restore constitutional government, which is to say a robust assertion of Congressional prerogatives while cultivating a 2016 Presidential candidate who will abide them. History suggests the seduction of Presidential power—especially compared to Publius’ chaste diffusion of constitutional authority—will prove too, as it were, intense.