Broken Trust

Dysfunctional Government and Constitutional Reform

Stephen M. Griffin

• Publisher: University Press of Kansas
• Year: 2015
• ISBN:
  9780700621538
• Topic: Politique et relations internationales
• Subtopic: Constitutions

Variously and roundly perceived as gridlocked, incompetent, irresponsible, and corrupt, American government commands less respect and trust today than perhaps at any time in the nation's history. But the dysfunction in government that we like so little, along with the policy disasters it engenders, is in fact a product of that deep and persistent distrust, Stephen M. Griffin contends in Broken Trust, an accessible work of constitutional theory and history with profound implications for our troubled political system.Undertaken with a deep concern about the way our government is performing, Broken Trust makes use of the debate over dysfunctional government to uncover significant flaws in the conventional wisdom as to how the Constitution works. Indeed, although Americans strongly believe that our government is dysfunctional, they are just as firmly convinced that the Constitution still works well. Griffin questions this conviction by examining how recent policy disasters—such as the 9/11 terrorist attacks, the response to Hurricane Katrina, and the 2008 financial crisis—are linked to our constitutional system. This leads him to pose the question of whether the government institutions we have inherited from the eighteenth century are poor fits for contemporary times.Griffin argues that understanding the decline of trust in government requires investigating the historical circumstances of the last several decades as well as the constitutional experience of the states. In particular, he examines "hybrid democracy, " the form of constitutionalism prevailing in California and other western states that combines Madisonian-style representative government with direct democracy. Hybrid democracy offers valuable lessons relevant to our contemporary difficulties with dysfunctional government at the national level. These lessons underpin the agenda for reform that Griffin then proposes, emphasizing democratic innovations aimed at producing both more effective government and greater trust in our political institutions. Building on a better understanding of the sources and consequences of government dysfunction, his book holds genuine hope, as well as practical possibilities, for the repair of our broken political and constitutional system.

1

Is Our Government Dysfunctional?

The months before the 1787 Federal Convention in Philadelphia found James Madison cramming as if he were about to take an exam. Studying as if his life depended on it, Madison reviewed the entire history of human government, focusing especially on the democracies of the classical world and modern republics. Madison also devoted considerable time to formulating a detailed critique of the way American government had worked to that point under the state constitutions and Articles of Confederation.¹

In April, just prior to the opening of the Federal Convention, Madison produced a remarkable evaluation of American government called “Vices of the Political System of the United States.”² He set forth eleven separate points, chiefly having to do with the failures of the state governments. Madison believed that the states were constantly encroaching, violating, and trespassing on the rights of the federal government; other state governments; and, indeed, other nations.³ In addition, the Articles of Confederation could not operate as a genuine “Political Constitution” for the United States because it failed to give the national government the ability to coerce the states and so enforce its judgments.⁴ Finally, state legislatures in particular were truly out of control. They had passed multiple laws abusive of liberty and kept changing those laws so rapidly that no one could keep up with them. Many of these laws were clearly unjust, at least in Madison’s judgment.⁵

Few would deny that Madison identified some of the faults of the prevailing system of government. Given the serious nature of these faults, it is plausible to say that Madison had shown his system of government to be “dysfunctional.” Thinking about the task Madison set himself can help orient us in assessing the claims of many thoughtful observers that America’s political and constitutional system today are in a similar state.

Let’s assume that you had to produce a contemporary version of Madison’s “Vices.” Do you know what you would say? Given the seemingly universal dissatisfaction with the way American government operates, particularly as shown by how little trust most Americans have in their government, there is no doubt that many citizens could elaborate their own eleven-point (or more!) lists. We will begin our inquiry by sorting through indictments of the American system of government by journalists and scholars. But Madison’s achievement should inspire caution, for consider: What sort of knowledge would be required to duplicate it today? Madison believed he needed to review the history of government from the fifth-century b.c.e. Lycian Confederacy onward as well as consulting the great political treatise writers of his age, such as Montesquieu and Grotius.⁶ It is all very well to complain about the way our government works (or fails to work), but doing anything today similar to what Madison did in 1787 would surely involve years, perhaps decades, of study.

Consider another point: Do we have Madison’s confidence that it is open to us to design the constitutional system anew? One of the most famous quotations from the founding period comes from the very first number of The Federalist, the great work written by Alexander Hamilton, John Jay, and, of course, Madison himself. This was by Hamilton, who observed, “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”⁷

The authors of The Federalist were obviously proponents of the view that it is possible to respond rationally to the flaws of a government by offering reforms. We should further observe that these framers were advocating not any garden-variety reforms but a fundamental alteration of their country’s constitutional structure. The general notion that we can rationally criticize our system of government and advocate meaningful systemic reforms remains popular today. Some might even consider this to be a matter of common sense and wonder how it could be questioned. Notice, however, that this kind of thinking assumes we live in a designed system—in a government established, as Hamilton says, from reflection and choice.

Do we live in a designed system? There is no shortage of scholarly works based on the premise that a careful study of the logic of the original constitutional design will pay dividends in the present. Yet for every work insisting on the contemporary relevance of the original design, there is another reminding us that the system we actually live in is the product of more than 200 years of historical practice.⁸ Relatively uncontroversial examples of major changes to our system of government not anticipated at the founding include political parties, the Reconstruction amendments, and the expansion of the right to vote. Somewhat more controversial examples (in the sense that some deny their legitimacy) of major informal constitutional changes might include the delegation of power to the administrative state, the expansion of the power of the national government vis-à-vis the states, and presidential war powers. Many scholars would also point to the U.S. Supreme Court’s interpretation of the Constitution amid myriad historical adaptations and practices as having changed our political and constitutional system over time (throughout the book, I use the terms “constitutional system” and “constitutional order” interchangeably; I define the latter term in the last section of this chapter).

Some scholars are so impressed with the reality of a practice-based constitutional system that they hold we have transited to a British-style “unwritten” constitutional tradition.⁹ We need not go this far to appreciate that there are problems with simply assuming we are living with the same system the framers designed. The point for now is this: if we accept that we are living in, at a minimum, a hybrid political and constitutional system, partly designed and partly the product of more than two centuries of historical change, then this complicates considerably the task of producing a Madisonian “Vices” critique in the present. It makes it more difficult for us to place ourselves in Madison’s position and imagine how we would begin the system anew. More to the point, it makes it difficult both to pin down the causes of any systemic problems and to anticipate the consequences of any proposals for constitutional reform.

Let’s consider one final aspect about trying to be Madison in contemporary times before we turn to some leading recent assessments of our political and constitutional system. What does criticism of our dysfunctional politics and political system have to do with the Constitution? For his part, Madison was certain that the Articles of Confederation was an inadequate framework for government. Indeed, it appears that after the Constitution was adopted, few people waxed nostalgic about government under the Articles. We are on the other side of that debate, and so for us it is settled that the Articles was unworkable. An entirely new constitution was called for and it is the Constitution ratified in 1787–1788 that prevails today as our supreme law (although it has been amended twenty-seven times). The point of the question, however, is that even if we are dissatisfied with our public officials and the way they conduct politics and even if we are convinced that we have advanced a sound critique of the entire “political system,” do those defects extend to the Constitution? Are we today as sure as Madison was that a significantly amended or even new Constitution is required? The typical answer Americans give is no. At the beginning of his interesting set of Socratic dialogues with ordinary citizens about constitutional reform, for example, Christopher Phillips observes that “as dysfunctional as people of most political persuasions believe our government is, they are just as convinced that the Constitution still works.”¹⁰

Amid all the talk of dysfunctional government, this last point suggests that we should focus on whether the critiques of government dysfunction justify major changes to our system of government. To put it another way, assuming the political and constitutional system is dysfunctional, is that something we simply have to live with, perhaps while the system muddles through, or does it demand our immediate attention and motivated commitment to significant constitutional reforms?

To summarize this introductory discussion, we should bear three points in mind in assessing claims that our system of government is dysfunctional. Inspired by the task Madison set himself, we should consider (1) whether we have the appropriate knowledge to diagnose and remedy the problems of our political and constitutional system, (2) whether we have confidence that we can fundamentally alter that system without risking unforeseen negative consequences, and, finally, (3) whether there is a reasonably close link between dysfunctional government and the Constitution itself.

Critiques of Dysfunctional Government

Let’s keep these points in mind as we examine recent influential critiques of our contemporary politics and system of government. It is useful to divide them, somewhat roughly, into three groups:

•domestic critiques

•international critiques

•theory critiques

Domestic Critiques

Domestic critiques are those that most clearly advance claims of dysfunctional government. They argue that the political system no longer works for most Americans and highlight the increased polarization of American politics; the “hyperpartisanship” that prevails in the core of the Democratic and Republican parties, especially in Congress; and the gridlock in government that results. The best example by a journalist is Ronald Brownstein’s insightful and well-researched The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America.¹¹ Another example in the same genre is the more impressionistic book by New York Times columnist Tom Friedman and noted political scientist Michael Mandelbaum, That Used to Be Us.¹²

It is important to understand that these authors are not criticizing political polarization and partisanship in the abstract. They link these phenomena to a series of pressing policy issues that they believe have gone disturbingly unaddressed. It is typical for domestic critics to stress that they are concerned just as much with poor policy outcomes as with a defective political process. Brownstein begins his book by listing eight policy areas in which he claims the nation has failed to make progress for years on end:

1.Reducing U.S. dependence on foreign oil

2.Balancing the budget

3.Providing health insurance for uninsured Americans

4.Immigration policy (a plan to improve border security and provide a way to deal with 12 million illegal immigrants already in the country)

5.Adjusting Social Security and Medicare benefits and taxes in a way that future generations can bear

6.Taking steps to provide greater security for middle-class Americans in an era of global economic competition

7.Creating a strategy to reduce greenhouse gases

8.Deciding how to properly fight the threat of terrorism¹³

We will analyze the issues on Brownstein’s list in more detail later in this chapter. Although a number of these points relate to foreign policy, I call his critique “domestic” because he is fundamentally concerned with how the fabric of domestic politics—the nuts and bo...