You should know by now, after 10 years of blogging, that I am a pretty liberal Democrat, but also a democrat. The lower-case version is more important that the party affiliation, especially at the present time. All the ideologies and left-right tilts will not protect our basic freedom and the rights that constitute it. Now that the Democrats have recovered control of the House, the headlines have shifted a bit from concern over democracy to intra-party battles about how far to the left the Democratic party should be if they are to win the 2020 Presidential election.
This is the wrong battle. Before any debate and focus on policy differences, it is critical and essential to fix the broken governance system. Conservatives like to return to the past seeking wisdom, often invoking the Founding Fathers as the ultimate source of that scarce commodity. While I do not believe that originalism is the way to interpret the Constitution’s text sentence by sentence, we can learn much from the larger currents that ran through their deliberations.
One key idea was some system of checks and balances to protect against the passions of factions, simply put, those who put their interests over the common good. A second key feature was a bicameral legislative body to create the structure of laws necessary for a country governed by the rule of these laws. Quite a shift from the English system of judge-made laws creating the foundation. This was to be the most important part of the governance system. Next came the executive, but of lesser importance that the Congress, and finally the Supreme Court.
Given the huge change in the world since 1787-8, it should not be surprising that the relative importance of the three branches has shifted, with the Executive becoming the tail that wags the dog. But the dog still needs to be alive and barking for the system to be protective of democracy and the common good. The Judicial branch has, arguably, worked pretty well in spite of a history of intermixing politics and jurisprudence. Robert Dahl, a giant in the field of political science, wrote that the Court was always part political, but that “the policy views dominant on the court are never for long put of line with the policy dominant among the law-making majorities of the United states.” He wrote this during a period of many political changes among newly appointed Justices. Whether he is right now remains to be seen.
This leaves the third branch – Congress – in the limelight. It is broken and needs to be repaired if the triad of branches, as a whole, is to work. Whatever the causes, and there are quite a few, it needs to return to a body that focuses on the common good and not on the two opposing factions, the two political parties. This branch has become completely dysfunctional, putting party far, far ahead of country. The examples abound, but none so blatant as the refusal to consider the nomination of a Supreme Court Justice nominated by a Democratic President. Ideologies, buried in the political labels of the two parties, are nothing less than symbols for the factions that wave their clashing banners.
We should have learned by now that neither party has all the answers. Given the complexity and interconnected world of the 21st century compared to that of 1787, no one is going to have all the right answers. This reality demands a more pragmatic Congress, one pretty much like that envisioned by the Founding Fathers. That reality also demands honest debate, the only way to find one’s way in the maze of complexity.
There is a strong belief among many critics of our Government, on both the left and right sides of the political spectrum. that the problems that are crippling our system can be solved only by creating a new constitution. Maybe in the long run, but, in this matter, I will call myself a conservative. First look back at what the framers did and why and give that another try before diving into what are bound to be murky waters.
One Reply to “First Things First”
Some thoughts I formulated long ago.
The framers of the Constitution were not lacking in guidance from the science of politics which had taught them to make liberty the end of government. They were especially influenced by Montesquieu’s The Spirit of the Laws. Montesquieu understood that every form of government had its own particular excellences, and also its own tendency to corruption or degeneration. In this he was simply in agreement with the great tradition of political thought. For example, in Aristotle’s fundamental typology of regimes, there are six basic forms: three that are true forms (monarchy, aristocracy and polity); and their three perversions, that is the form into which each tends to degenerate (tyranny, oligarchy and democracy). On the basis of this typology, Aristotle teaches how to arrange or constitute the regime, whatever its type, so as to help it be its distinctive best self in its circumstances, and so guard against its distinctive degenerative tendencies. Montesquieu also has a typology of regimes – or forms of government, more precisely – and an analysis of their peculiar excellences and degenerative tendencies.
Aristotle and Montesquieu reason as follows: Every regime or form of government has to have a ruling element, some part of the whole which has to have the final political power. But that power is always susceptible to perversion or abuse. In each political order the slide to perversion or abuse follows the path of weakness peculiar to that order, and prudent founders and statesmen take pains to guard against the slide.
While Montesquieu and Aristotle developed similar typologies, and agreed on the degenerative tendencies, they differed widely regarding the proper safeguards. The differences are largely attributable to the different ends each is trying to achieve or protect in the various regimes. From the point of view espoused by Aristotle, the safeguards were formation of character and focus on virtue. This was a highly personal and individualized approach. This was probably derived from Plato who taught that knowledge was the key to virtue.
Montesquieus’s view was that the safeguards lay in the right kind of institutions, institutions with teeth in them. The American founders followed Montesquieu. He did not seek to restrain rulers by means of the teachings of religion or instruction in virtue. He turns instead to a purely institutional means for securing liberty: the separation of powers.
Perhaps the founding fathers followed Montesquieu because they felt that religion could eventually work its own tyranny on men. Perhaps, remembering John Jay’s quote: (“Providence has been pleased to give this one connected country to one united people…descended from the same ancestors, speaking the same language, professing the same religion…”) they felt that a common moral and ethical imperative already existed, exerting its own inexorable influence on individual character formation and the development of virtue. In any case, they chose to safeguard liberty through institutions rather than individuals.
We forget this at our peril.