The Constitution is strangling America

Our founding document is an obstacle to good governance

America and the Constitution.
(Image credit: Illustrated | iStock/Yurchello108, iStock/Phiradet Chuainukool)

Political junkies are on tenterhooks at the moment waiting to see if another vitally needed round of coronavirus relief will get through Congress before the election. Speaker of the House Nancy Pelosi set a Tuesday night deadline for negotiations, while Trump is at least posturing as if he supports a major bill. It's a difficult situation to read in large part because President Trump is an erratic goofball who changes his position on fundamental questions by the hour and often seems to have no idea what is even being discussed. It's hard to get anything through with such a man needing to sign off on any compromise.

However, there are also large structural obstacles to more relief, created by our creaking and ancient Constitution. The American system of government is simply not geared for agile policymaking that is needed to run a modern state, or indeed any policy at all.

The primary structural problem we face is, of course, divided government. To pass a new law, both House, Senate, and president must agree, and when these are controlled by different parties — as they are now and have been for great chunks of American history — it makes even routine government business hard, as there is always the temptation to refuse to compromise in order to extract concessions from the other side. (Republicans did this constantly under President Obama, up to and including threatening to destroy the world financial system by deliberately defaulting on the national debt.)

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It's harder still when a crisis falls on an election year. Since the president is the head of government, and therefore the most visible and well-known politician in the country, his party tends to get blamed when things are going poorly. That's why even a complete clod like Trump can see that the stalling economy is probably not good for his re-election prospects, and conclude that some more rescue money is called for.

Pelosi, as the most powerful Democrat in the country with de facto veto power over any rescue, has the exact opposite incentive. It would be grotesquely irresponsible, but it would probably work out better for her party in the upcoming election if she throws up a lot of dust about the negotiations, denies Trump any sort of deal, and trusts that he'll get blamed for the resulting economic pain.

Incidentally, it is unclear exactly what either Pelosi or Senate Majority Leader Mitch McConnell are thinking about these negotiations. Pelosi has previously acted against narrow party interest — indeed, she has routinely abandoned top progressive priorities to try to assuage Republican concerns or behave "responsibly." But now she appears to be playing hardball at a very perilous time. So far she has resisted quite generous offers from Treasury Secretary Steven Mnuchin, which means she can't portray the Senate as the only obstacle and dial up the pressure on McConnell. That suggests she actually doesn't think a rescue is that urgent, or perhaps she is waiting until the last second so McConnell can't pass a slightly different package and try to pin the blame on her instead.

McConnell's caucus, meanwhile, is stuffed full of crazed anti-rescue ideologues who loathe the idea of anyone but the rich getting government cash. Nevertheless, without a rescue, both Trump and Senate Republican incumbents are more likely to lose, and McConnell has promised to at least "consider" anything Pelosi passes (whatever that means).

At any rate, if the tables were turned, Republicans absolutely would be trying to harm the country as much as possible to benefit themselves politically, as they have done before. If Joe Biden wins, they are going to try to run the same play they did when they won the House in 2010: Throw a fake tantrum about the national debt to hamstring the economy and drag down a Democratic president, then turn on a dime when their party takes power and spend like a drunken sailor on tax cuts for the rich and the military. Indeed, some in the GOP are already plotting to oppose any more pandemic relief so that their upcoming pivot to austerity is slightly less preposterously hypocritical.

This is a goofy way to run a country. What is needed is a political system with clear lines of responsibility. America is crying out for a system of comprehensible elections, where voters elect a party (or coalition of parties), that group governs, and the next election is an obvious referendum on whether they've done a good job. Elected leaders should be forced to handle crises, instead of spending most of their time desperately trying to deflect blame to somebody else. Indeed, if the party with the most votes got to rule, Trump never would have become president in the first place.

By the same token, the most common justification for our so-called "separation of powers" — that it acts as a check on excessive government power — is not just wrong, but the opposite of truth. In fact, with the legislature basically nonfunctional most of the time, power has instead flowed to the president and the courts. Few executives of wealthy democracies are as powerful as the American president, and no other is basically impossible to remove from office no matter how many laws they break (as Trump has proved). Similarly, no peer nation has our degree of judicial supremacy — where the courts do not enforce the rule of law but make it up themselves as an unelected right-wing super-legislature.

Contrast our wretched situation with, say, the mixed-member proportional parliament in New Zealand, where a recent election returned a smashing victory for the ruling Labour Party because their response to the pandemic was accurately perceived as excellent (that nation just had its first case of community spread in three weeks on Sunday, and 25 people in total have died of COVID-19). These two things are not unrelated.

As Osita Nwanevu argues at The New Republic, progressives and leftists should be eyeing the idea of heavily reforming America's constitutional system, from expanding the Supreme Court, to a national vote for president, to adding more states to un-bias the Senate, to simply replacing the Constitution outright. Joe Biden may win in November, but for the country to survive as a democratic republic even over the medium term, it is going to need serious work.

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