What Would Madison Do?

The Father of the Constitution Meets Modern American Politics

Benjamin Wittes, Pietro S Nivola, Benjamin Wittes, Pietro S Nivola

• Publisher: Brookings Institution Press
• Year: 2015
• Print ISBN: 9780815726579
• eBook ISBN: 9780815726586
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

What would the father of the Constitution think of contemporary developments in American politics and public policy?
Constitutional scholars have long debated whether the American political system, which was so influenced by the thinking of James Madison, has in fact grown outmoded. But if Madison himself could peer at the present, what would he think of the state of key political institutions that he helped originate and the government policies that they produce? In What Would Madison Do?, ten prominent scholars explore the contemporary performance of Madison's constitutional legacy and how much would have surprised him.
Contents:
1. Introduction: Perspectives on Madison's Legacy for Contemporary American Politics, Pietro S. Nivola and Benjamin Wittes
2. Mr. Madison's Communion Suit: Implementation-Group Liberalism and the Case for Constitutional Reform, John J. DiIulio Jr.
3. Constitutional Surprises: What James Madison Got Wrong, William A. Galston
4. Overcoming the Great Recession: How Madison's "Horse and Buggy" Managed, Pietro S. Nivola
5. Gridlock and the Madisonian Constitution, R. Shep Melnick

Part I

AN OUTMODED MODEL?

Two

MR. MADISON'S COMMUNION SUIT

Implementation-Group Liberalism and the Case for Constitutional Reform

JOHN J. DIIULIO JR.

Until the day that she died in 2010, my mother loved showing anybody who would look—doctors, nurses, even, on one occasion, an ambulance driver who later confided that he thought she was reaching for pills or a ventilator—her favorite photograph: me in 1965, wearing my First Holy Communion suit.

I can't say that I blamed her; I did look awfully angelic. Then as now, I was what my mother insisted on calling “husky” (a.k.a. having sky-high BMI). The jacket strained at the waist. The shirt collar and knot of the blue tie folded into a chubby (sorry, Mama, “husky”) double chin. The pants rode up high above my ankles (as in “Why don't you have a party and invite your pants down?”) Still, it was ’60s urban Catholic school cool.

But not even Mama wanted me to keep wearing my communion suit as I got older. Not even she lamented that I stopped wearing it well before middle school and could not possibly wear it when I reached middle age. The Incredible Hulk's pants get frayed but somehow still fit after he morphs from normal-sized man to outsized monster. Me? As an adult, I might have been able to get one “husky” arm into the suit's pant leg, but that would be about it. In fact, in 2002, when Mama moved in with me and my wife and children after my father died, she finally threw out my communion suit (along with other clothes dating back to God knows when). It was tearfully but totally gone.

Metaphorically speaking, is the Constitution America's communion suit? It was tailored for a slave-holding, Anglo-Protestant–dominated, horse-and-carriage, eighteenth-century nation peopled by roughly 4 million mostly Eastern Seaboard–hugging souls. It underwent twenty-seven post-ratification alterations (or sixteen if you count the first ten plus the twenty-seventh, which was originally proposed along with the first ten, as just one). Albeit not without busted seams and threadbare patches, the Constitution proved elastic enough for the democracy to keep wearing through territorial expansions, waves of immigration, technological leaps, a civil war, economic crises, two world wars, a global cold war, and a domestic civil rights revolution. In 1965, when my communion suit fit me the best, the Constitution still fit the country.

Over the last half-century, however, America has become a demographically diverse country that more than 300 million citizens call home. Since 1965, the American people's duly elected national leaders at both ends of Pennsylvania Avenue have birthed six new federal cabinet departments: Housing and Urban Development (1965); Transportation (1966); Energy (1977); Education (1979); Veterans Affairs (1989); and Homeland Security (2002). Enacted in 1965, Medicare and Medicaid, the two major federal health care programs, together account for about one-fifth of annual federal spending. Environmental protection, education, crime, and other issues that were barely on the federal agenda in 1965 are major agenda items today.

Adjusted for inflation, the size of the federal budget today is more than five times as large as it was in 1960. In 2011 dollars, the federal government spent roughly $712 billion in 1960. In 1970, it spent about $1.2 trillion; in 1980, $1.7 trillion; in 1990, $2.3 trillion; in 2000, $2.5 trillion; and in 2010, $4 trillion. State and local governments combined spend about $3 trillion each year. Total government spending (federal, state, and local) per capita is now about $20,000, and the annual debt per capita is about $50,000.

The Constitution's founding tailors, led by James Madison, were by no means allergic to a strong national government (see the Virginia Plan; see Alexander Hamilton). They favored structures that could be changed and powers that could be expanded over time (see Article V). Compared with that of their antifederalist adversaries (see Patrick Henry), their vision for America was remarkably cosmopolitan (Exhibit A: no religious test required to hold federal office). Still, Madison's Constitution was not designed to fit a big or ever-growing government. It was more nearly designed to prevent one, and it most surely comprehended nothing like today's “husky” federal bureaucracy. Over the last half-century, formal, legal, and customary constitutional restraints on government growth were progressively relaxed, reduced, or removed. For example:

—The great majority of members of the House of Representatives have come to be incumbents holding fairly safe seats; primary elections and activists have supplanted party conventions and party bosses as the decisive means of selecting presidential candidates; and the number and variety of interest groups have increased enormously, as has the amount of money flowing into campaigns.

—The federal courts have altered their interpretation of the Constitution in ways that have not only permitted but required government action.

—Public opinion and the voting public have changed in ways that have legitimated and supported an expanded role for the federal government.

—Checks and balances have persisted, but whereas they once made it hard for the federal government to start a new program, they later made it hard, if not impossible, to cut or kill a program or to change how Washington directly administers or, more commonly, leverages what it funds.

Over the last thirty years, I have taught introductory American politics and government courses to undergraduates at Harvard University (in the 1980s), Princeton University (in the 1980s and 1990s), and the University of Pennsylvania (from 1999 to the present). Among the students in my courses, I am famous (or infamous) for assigning The Federalist Papers and requiring students to read Madison's No. 10 over and over again (seven times on my spring semester 2014 syllabus). No. 10 is the essay in which Madison explicates his hope that America's representative democracy—if structured as proposed in the yet-to-be-ratified Constitution and without depending on “enlightened statesmen” to “always be at the helm”—will generally succeed in taming “the mischiefs of faction.” Most important, he hoped that it would tame the potentially fatal-to-democracy mischiefs of majority factions. Madison reasoned that through the constitutional contrivances to be described and defended in later numbers of the papers (separation of powers, checks and balances, federalism, the bicameral legislature, staggered elections, and others)—and given a bit of buona fortuna—the republic's “various and interfering interests” would likely be subjected regularly to public-spirited “regulation” by duly elected legislators (whether average leaders, self-loving louts, or the occasional Solon) functioning in the main as “proper guardians of the public weal.”

The Madison who wrote No. 10 reckoned that the national government of “We the People,” in its “necessary and ordinary operations,” would cope successfully with the ever-present “spirit of party and faction,” respect citizens’ liberties, protect citizens’ rights, and serve “the permanent and aggregate interests of the community” (what elsewhere in No. 10 and throughout The Federalist Papers is rendered in shorthand as the “public good”). As is plain from the Preamble of the Constitution as well as from so much else that Madison and the other Framers did and wrote, the “people,” the “public,” the “community” whose “permanent and aggregate interests” the “more perfect Union” was to serve” encompassed both “ourselves and our Posterity.”

WE THE DEBT-FINANCED FACTION

Despite the Framers’ reference to “ourselves and our Posterity,” for a half-century or so, a persistent majority faction, consisting of Americans of every demographic description and socioeconomic status, supported by elected leaders in both parties and unbridled by the federal judiciary, has broken through virtually every constitutional barrier in order to benefit “ourselves” at the expense of “our Posterity,” saddling the republic's future generations with tens of trillions of dollars in public debt.¹

Lest my reader begin to get the wrong impression and smell a tea party brewing here, I am a lifelong Democrat who carries a torch for the New Deal.² I am highly sympathetic to the FDR-initiated, Eisenhower-consolidated, LBJ-expanded, and Reagan-survived entitlement state. I have never been philosophically allergic to “big government.”³ Rather, I contend that having mega-programs like Medicare, Medicaid, and “Obamacare” (a.k.a. the Patient Protection and Affordable Care Act of 2010) is a civic blessing. In fact, I favor a single-payer universal health system.⁴ In short, I have faith that the federal government, together with state and local governments, can yet be made to work better and cost less, including through surgical—not sweeping—administrative reforms and through public-private partnerships involving for-profit businesses, secular nonprofits, and (my personal favorite) faith-based organizations.⁵

What I do oppose strongly enough to now contemplate a possible cure that I have hitherto thought worse than the disease—far-reaching constitutional reforms—is big government by a tax less, spend more, fifty-plus-year-old majority faction that has gorged itself on entitlements and other government-supplied goodies for which future generations must foot the bill. To be clear, I am defining entitlements as benefits that every eligible person has a legal right to claim and that the government may not legally deny. Social Security benefits and Medicare benefits are entitlements—big ones. Entitlements also include all the government benefits legally due to an individual who can demonstrate a need for those benefits—like nursing home payments for old folks who qualify for Medicaid or meals and snacks in the summer months for children who are eligible for the U.S. Department of Agriculture's summer food service programs.

The entitlement state that began during the New Deal was born from the noble conviction that to serve the common good, the federal government could and should work to create conditions under which average men, women, and children could lead peaceful and productive, if not uniformly prosperous, lives. The entitlement state today is far more extensive than anyone dreamed it would be in 1935 or, for that matter, in 1965. For instance, Medicare, the program serving mainly people age sixty-five and older, now has about 50 million beneficiaries and costs more than $550 billion a year. Medicaid, the federal-state program that mainly covers low-income children and adults plus people with certain disabilities, now has about 60 million beneficiaries and costs roughly $350 billion a year. Together, Medicare, Medicaid, and Social Security account for about 40 percent of the federal budget.⁶

Still, so far, so good, at least as far as I am concerned. As I see it, the problem is not the entitlement state per se. Nor, I would argue, is the problem that the entitlement state's expansion has propelled the aforementioned increase in total government (federal, state, and local) spending, which was equal to about 42 percent of GDP in 2010, up from about 27 percent of GDP in 1960. Rather, the problem is that the entitlement state has expanded mainly through fake political compromises, ever-goofier budgetary gimmicks, and long-term debt financing. For instance, according to a 2012 report by the Medicare Board of Trustees, the Medicare Trust Fund could be exhausted in 2024. Add the unfunded liabilities of Medicare, Social Security, and federal employees’ future retirement benefits and the bill being foisted on future generations of Americans is more than $80 trillion (about $40 trillion for Medicare alone).⁷

In other words, American citizens yet to be born are being stuck with an entitlement benefits bill that is about five times the country's current annual GDP. And why is that? A persistent public majority says that it dislikes Congress and has big qualms about “big government.” Yet in twenty-five national plebiscites between 1960 and 2014, voters reelected House incumbents at a rate north of 90 percent and Senate incumbents at a rate of about 80 percent.⁸

The 1980s brought both Ronald Reagan to the White House and the first waves of incontrovertible evidence that the entitlement state was becoming ever more financially wobbly. In 1986, Washington overhauled the federal tax system. The leading journalistic account of the law characterized it as reflecting an unlikely triumph of bipartisan legislators over Beltway bandits, lawyers, and lobbyists,⁹ and a leading academic account of the law described it as a prime example of how Congress, warts and all, sometimes manages to produce “general interest” legislation.¹⁰ But what actually followed was not a slow but steady return to fiscal discipline or tax-as-you-entitle politics. Instead, what followed were more federal programs; more federal program benefits; more federal spending; lower federal taxes; reborn federal tax breaks, deductions, and credits; even more reaching recklessly and unfairly into “our Posterity's” pockets; and ever fewer degrees of financial freedom for future democratic generations to set their own public priorities.

The “Reagan revolution” involved a conservative president that wanted three things: lower taxes, increased defense spending, and sizable long-term cuts in entitlement spending. To get the first two, he traded off the third. But his 1986 deal with House Democratic leader Thomas P. “Tip” O'Neill was not a classic, bipartisan political compromise. It was the first of the “you tax less, we spend more” corrupt bargains that have defined federal “fiscal policy” for the last quarter-century and persist down to the present day.

Partisan and ideological fights like the post-2009 clashes over budgets and the debt ceiling fog the fact that nobody in official Washington at either end of Pennsylvania Avenue—nobody—is both willing and able to do anything that would either actually cut big-budget programs or raise more revenues from today's taxpayers to pay for them anytime soon. For instance, in 2011, Senator Ron Wyden (D-Ore.) and Representative Paul Ryan (R-Wis.) introduced a Medicare reform plan. Among other provisions, the plan reduced certain benefits for the wealthiest senior citizens. It featured a “premium support” voucher-type option under which beneficiaries could choose either a traditional Medicare plan or a Medicare-approved private plan. Total annual out-of-pocket Medicare costs were to be capped at $6,000 per person, and low-income citizens who could not pay the cap would receive a subsidy from the government.¹¹

But for all the controversies that swirled around it, the Wyden-Ryan proposal contemplated neither deep cuts in benefits nor steep tax increases. Instead, its first lines were a rhapsody regarding the need to “strengthen Medicare and health security for all,” with “no changes for those in or near retirement,” and guaranteeing that Americans age fifty-six and older “would see no changes to the structure of their benefits.” The proposal reflected the “We, the Majority” faction's desire to continue to get benefits without increasing taxes except, perhaps, on the richest citizens: 92 percent of respondents opposed “major cuts”; 65 percent opposed “minor cuts”; 51 percent opposed increasing program tax rates.¹²

“ERRORS AND DELUSIONS” ARE US

In December 2010, Erskine Bowles, the co-chair of the National Commission on Fiscal Responsibility and Reform, suggested that federal spending and revenues be balanced at no more than 2...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Acknowledgments
• One - Introduction: Perspectives on Madisons Legacy for Contemporary American Politics
• Part I - An Outmoded Model?
• Part II - What Might Madison Say?
• Contributors
• Index
• Back Cover