Anton inspires confidence both that the Founding was guided by the resulting theory of justice, and that that theory should still guide us.
Among its myriad other mysteries, the 2016 election presents this Madisonian puzzle: Why are so many members of Congress genuflecting before presidential nominees whose platforms include emasculating them?
Speaker Ryan (R-Wisc.) defends his endorsement of Donald Trump despite apparently disagreeing with the nominee-in-waiting’s every public utterance. Senator Warren (D-Mass.) rushes to the Hillary Clinton camp at the first sign that the latter’s nomination is sealed. What kind of power would either lawmaker—or the countless others executing comparable maneuvers—maintain under these presidencies?
“The great thing about executive orders,” says Trump, “is that I don’t have to go back to Congress.” He does not oppose President Obama’s expansion of executive authority; he will just use it more fabulously. In his words, Trump is “going to use [executive orders] much better and they’re going to serve a much better purpose than [Obama’s] done.”
Here, similarly, is Hillary Clinton: “If Congress won’t act,” she says of her opposition to corporate inversions, “then I will ask the Treasury Department when I’m there to use its regulatory authority, if that’s what it takes.” With respect to guns, she will “work with Congress” but “look at ways as President.”
Why would members of Congress, whether Republicans or Democrats, endorse such candidates? Indeed, on Madisonian assumptions about the separation of powers, we are not supposed to have to worry about a President acting in that domineering manner. The way it is supposed to work is that Congress, jealous of its power, would unite to retaliate against abuses by the Chief Executive.
Yet not only does this no longer occur, we now see members of Congress—with the scant and consequently notable exception of such principled constitutionalists as Senator Ben Sasse (R-Neb.)—lining up, as if duty-bound, behind candidates who promise to subjugate them. Trump in particular rejoices in this humiliation, imposed nearly as a form of hazing.
Madison tells us that when things start to go awry, we must look for answers by probing the office-holder’s motive for seeking office: Whence, in other words, ambition? Presidents still have it. They obsess over legacies, and protect their office for themselves and their successors like threatened animals.
Whereas from the look of it, members of Congress are seeking office for reasons other than exercising power. They spin off authority, as George F. Will has put it, like an impetuous vortex flipped into reverse. This was inconceivable to Madison, partly because he did not consider congressional service that glamorous. For much of the 19th century, the period that Woodrow Wilson stigmatized as the era of “congressional government,” a typical Representative served for an average of three years. Average service climbed to today’s peak of over 10 years alongside the 20th century growth of presidential government.
That seems curious—the less power one has, the longer one serves—except that something else happened in the 20th century: Washington became an imperial capital, and the national government became a distributor of detailed and complex largesse. Congressional seats therefore became objects of prestige, and congressional relationships became lucrative commodities.
In this environment, there are reasons to serve in Congress other than the pursuit of power. The pathetic capitulation of members to presidential nominees who openly plan to defenestrate them illustrates either the consequent absurdity or corruption, or both.
The Madisonian answer would therefore be, first of all, to alter the motives for serving in Congress. One way to do it would be term limitation. This would drain congressional relationships of their monetized value and deprive service of any attraction other than that of exercising power. Thus would institutional prerogatives be defended during what Daniel Patrick Moynihan called “this brief but sacred authority.”
Second, simplify the national government’s role in economic distribution. A political application of the principle of Occam’s Razor might somewhat deprive congressional relationships of the priesthood of detail that makes them convertible into profitable post-Capitol careers. That does not have to mean budgetary austerity. That is a separate debate. The question is the detail and complexity with which taxpayer monies are administered. (The complexity with which the tax code seeks to manage behavior and indirectly distribute subsidies is but one illustration.)
Neither of these would come without cost. Term limitation in particular would deprive the nation of the service of worthy leaders. On the other hand, their expertise is increasingly bargained at the expense of their wisdom, and its returns diminish in an institution that is hemorrhaging power. The ease with which senior statesmen surrender their prerogatives to a presidential office that should not wield them and to suitors who should not occupy it indicates they no longer have a moral claim to their indispensability.
Simplification would return us to Publius’ regime, and term limitation might help to restore it. By contrast, continued capitulation to the presidency, magnified by its pursuit by those so unworthy of it, now delivers a compelling reminder that the good sense of republican citizens might be more valuable than the costly expertise of careerists.