The Constitution Doesn't Need to be Rebuilt

In 1914, Herbert Croly published a broadside against the American Constitution. Progressive Democracy accused the founders of a sin to which they would happily confess: elevating written law over public will. The same year, Croly co-founded The New Republic, a journal whose incarnations over the century since have promoted nascent Progressivism, New Deal liberalism, and centrism that has swung both ways. The magazine has come full circle.

Under the headline “Rebuilding the Constitution,” The New Republic recently featured a cure for what ails American democracy. The premise—that “American democracy is broken,” as the subhead claims—is provocative, if unoriginal. As it turns out, though, the problem with American democracy is largely its recent failure to deliver results to the liking of the author, Matt Ford.

What Has the Constitution Done for Me Lately?

“Recent,” of course, is in the eye of the beholder. Ford regrets that “the past three decades, which span my entire life, have shown the limits and flaws of the Constitution of 1787.” Judging a regime by three decades when it has existed for more than two centuries longer than that is a bit short-sighted, not to mention the fact that those three decades have featured frequent changes in power that have accommodated the broad spectrum of views within the mainstream of American politics.

The larger problem, aside from Ford’s constitutional critique, is that his complaint is not actually about the last three decades. It is about right now. This is less a call to revolution than the latest in a genre of attacks on the Constitution arising from its failure to produce certain policies at a given moment. Place it on the shelf alongside the calls for an Article V convention during the Obama years. In Ford’s iteration, William P. Barr is alleged to have behaved badly, so presidents should not be allowed to fire Attorneys General. Steve Mnuchin failed to produce Trump’s tax returns, so presidents should not be allowed to fire Secretaries of the Treasury.

In this sense—cue the gasps—Ford’s essay is positively Trumpian. It reflects an ethos according to which Donald Trump is the alpha and omega of American politics, constitutionalism, tradition, and aspiration. It is the same mentality that induces the president to proclaim that he has been treated worse than Abraham Lincoln and his acolytes to suggest he is braver than George Washington. Ford’s apoplexy over Trump’s election and policies—the Electoral College, the Russia investigation, the border wall—reflect an indistinguishable premise, which is that American constitutionalism exists only in the single moment of Donald Trump.

The reality is that Trumpism is an episode—an important one that deserves analysis, to be sure—but nonetheless one game in a long season. So are the lost policy battles Ford rues, which include legalizing marijuana, taxing the rich, requiring background checks for guns, and liberalizing immigration. Cases can be made for and against all of these. The opinion polls Ford cites in their favor do not count as constitutional arguments in either direction. Madison’s Constitution, as opposed to Croly’s, requires sustained consensus to translate mere public will into refined public opinion and, from there, into actionable public policy. One of Madison’s core empirical assumptions, matched by a normative commitment, was that majorities always get their way sooner or later in republican systems.

Cherry-picking issues to illustrate the Constitution’s supposed infidelity to public opinion does not reveal much. If anything, it shows that the Constitution is working as intended. (And seriously, the fact that access to marijuana varies by state is a crisis of the regime?) But no: Another explanation lurks beneath the constitutional veneer. Conservatives “have entrenched themselves as a near-permanent anti-majoritarian backstop” on the Supreme Court. Did these conservative justices, or the Warren Court before them, drink from the fountain of youth, or does “near-permanent” accommodate their mortality and compress it into a constitutionalism of the here and now? Trump’s border wall illustrates the excesses of presidential power, which Congress does not challenge because it is “captured by right-wing ideologues and a self-interested donor class….” If it had been captured by left-wing ideologues, would that be a constitutional crisis too?

Latent in these critiques is a supremely Progressive disposition, traceable to the moral certitude of Woodrow Wilson, that the only rational explanation for losing a game is that it was rigged. Thus the ritual condemnation of the donor class, whose particular turpitude lies in trying to persuade the proletariat, who, on this view, (a) should rule on all things and (b) are so unqualified to do so that they are duped to the point of political mind control by 30-second television ads.

The Senate’s structure has succeeded at forcing majorities to rule not with brute numerical force but rather in a spirit of moderation that conciliated minorities to the result.

Might it be possible that progressivism has been on the outs in the executive branch for three-and-a-half years—roughly 1.5 percent of American constitutional history—because Democrats lost an election? True, as Ford regrets, the Electoral College allowed Trump to win the presidency while losing the popular vote. Without reprising arguments that have become tiresome, yes, that can happen. If Hillary Clinton, who knew the rules by which she was playing, had mustered the political judgment to touch a plane down in Wisconsin or Michigan, it might not have happened in 2016.

An Excess of Democracy

There is a real constitutional critique, at times interesting, beneath Ford’s laments. For instance, he notes that “Congress is a pale shadow of its past self” (though he overlooks the fact that President Obama used unilateral executive power to suspend enforcement of federal marijuana and immigration laws, among others). Checks and balances now consist of the Supreme Court hearing challenges to presidential power, he also observes.

Both of these assertions are true. They are both substantial departures from the Constitution’s original design. But somehow, this is proof to Ford that the original design was flawed. In other words, the mold was right, the reality no longer fits it, so break the mold. Take a moment to disentangle that. We’ll wait.

Welcome back. In fairness to Ford, he views Congress’ structure as flawed from the start. And why? With Wilson sitting on his shoulder—whether sporting wings or horns depends on one’s perspective—Ford observes that “Article One is largely the product of overlapping compromises among the framers.”

File this under “no kidding,” but it is the nature of the compromises that troubles Ford. For example: “Slave states and free states struck a bargain to count slaves as three-fifths of a person for representation, giving slave-owners a disproportionate level of influence in national politics until the Civil War.” Is it necessary to explain—again—that anti-slavery forces insisted on the compromise to diminish the influence of southern states, which wanted to treat enslaved people as five-fifths of a person to inflate slave interests’ power?

The Senate, Ford says, was designed “to counterbalance the majority’s will,” a supposition for which there is no evidence unless one treats “will” as a synonym for “passion” and an antonym for “opinion.” The Senate’s six-year terms were in fact intended to allow passions to cool, but they are not Ford’s complaint. Rather, he objects to equality of state representation. So did Madison.

But that structure for the Senate has succeeded in an objective that was also important to Madison: forcing majorities to rule not with brute numerical force but rather in a spirit of moderation that conciliated minorities to the result. This is all the more important because of the very demographic trends that Ford worries will exaggerate the “democratic deficit” in the Senate: According to Ezra Klein, 70 percent of Americans will live in the largest 15 states within 20 years. These states are geographically dispersed, which means there is no logical principle for them forming a country of their own without accommodating the small states in between. Consequently, there must be some mechanism for meaningful inclusion of those Ford dismisses as “white, rural Americans”—whether “white” or “rural” is the epithet is unclear—unless he wants to transfer the extreme federalism of the Swiss cantonal system to North America and hope for the best.

Moreover, those trembling in a fetal crouch at the thought of Article I’s compromises—in other words, the reality that politics produces muddled compromises rather than axiomatic policies—might wonder why, then, Ford wants to channel decision-making to Congress. Its chief virtue is that it encourages moderation and compromise.

One assumption might be that a Congress rightly constituted would reach the correct answers on policy, which assumes that answers in politics are ever pristine and that pristine answers always align with Ford’s. This is the Progressive hope. It is oblivious, as Ford appears to be, to the twin realities that reasonable people disagree with each other—see Federalist 10—and that dissenters from dominant views are not, by definition, intellectually or morally defective.

On the contrary, what Burke called “a moral rather than a complexional timidity”—also known as humility—might induce the curious to ask what they can learn from those with whom they disagree. Those who lack the humility to acknowledge that some people could disagree with them for good reasons might at least muster the prudence to accommodate those who feel not only differently but also intensely.

As Willmoore Kendall and George W. Carey showed, the Constitution is pretty good at accommodating intensity. Ford has other ideas, some interesting, including electing members of the House of Representatives proportionally. They would be chosen, in other words, by party, statewide. “Not only would this make elections more competitive within each state, Ford argues, “it would also result in a more representative mix of lawmakers in each state’s delegation.”

It might also increase the influence of the dreaded donor class if all campaigns are statewide. More important, such a system might encourage voters to confine themselves to ever narrower and more rigid and parochial perspectives if they can find electable parties that more exactly suit their views. Systems of proportional representation can encourage compromise—was that a bad thing or not?—but they can also incentivize single-issue voting. The two-party system has many flaws, but it has the virtue, at least in principle, of corralling voters into the same tent, where they have reasons to moderate their views.

That is not occurring to the extent it could today. Democracy is the reason. Polarization and immoderation are the result not of the donor class, or right-wing ideologues, or other villains, seen and unseen, but rather of a primary system that allows the popular choice of candidates.

Which brings us to what Ford wholly overlooks. Has he considered the possibility of a democratic surplus rather than a democratic deficit? If Trump is the problem, so is demagogic populism, policy-by-tweet, and rituals of mass adulation that have replaced the dignity of presidential addresses. Only a few days into the Philadelphia Convention, Elbridge Gerry called it: “The evils we experience flow from the excess of democracy.”

Ford does not appear to share this concern. Undeluded by donors and ideologues, right-thinking people will come to right-thinking results. Democracy may therefore be trusted with its proper object, which is neither governance nor deliberation but rather Progress. Full circle, indeed.