Polarization and Our Constitution-Induced Crises

 The citizens of the United States hold the nation’s Constitution and the “Founding Fathers” who created it in high regard.  This is in spite of the fact that we are in continuous discord over multiple issues because of deficiencies in the document.  Ezra Klein has provided an interesting account of some of the features that bedevil us today in his book Why We’re Polarized.  Polarization and how the Constitution nurtures it will be the topic here.

The inability to come up with a functional means for electing a president left us with the Electoral College and all the conflict that has ensued.  That tale is worthy of a book of its own.  The issues of interest here are the peculiarities of our divided system of governance.  The primary problem is the split or competition between Congress and the President.  Historically, most attempts at such a system collapse because of this tension.  The particularities of party politics in the United States have (thus far) protected us from constitutional crises, but our time appears to be coming.  Klein explains, using analysis by the political sociologist Juan Linz.

“In 1990, in a paper entitled ‘The Perils of Presidentialism,’ Linz explained why.  The ‘vast majorities of stable democracies’ in the world were parliamentary regimes, where whoever wins legislative power also wins executive power.  America, however, was a presidential democracy: the president is elected separately from the Congress and can often be at odds with it.  This system had been tried before.  America, worryingly, was the only place where it had survived.”

When Congress and the presidency are controlled by different political parties, each can claim they are the legitimate representatives of the people.  If the parties have irreconcilable differences, the bodies of governance will also have such differences.  It gets even more complicated because the Constitution provided the legislature and the presidency with different voter constituencies.  To arrive at a Constitution that would attain approval by all the states at that time, states with small populations had to be protected from dominance by states with large populations, and slave states had to be protected from non-slave states.  As a consequence, low-population states have excessive influence in the Senate, and a favorable bias, although smaller, in the elections in the House and the presidency.

“Linz noted that presidents tend to be elected by voters but legislatures tend to reflect geography, with small towns and rural areas given outsized power.  It’s hard enough resolving a democratic disagreement that plays out among a single electorate.  What do you do when you’re facing a disagreement that reflects different kinds of electorates?”

“It’s a question with no answer. 

“This is why there are no long-standing presidential democracies save for the United States.  And it’s why America doesn’t impose its specific form of government on others.” 

Klein asks the reader to consider Germany, Japan, Italy, and Austria by providing a quote from Matt Yglesias.

“Those were countries that were defeated by American military forces during the Second World War and given constitutions written by local leaders in close collaboration with occupation authorities.  It’s striking that even though the US Constitution is treated as a sacred text in America’s political culture, we did not push any of these countries to adopt our basic framework of government.”

In that 1990 paper, Linz was forced to consider why the US was different.  Why had its system seemed to succeed where others had failed?  If Linz were to revisit the US issue today, he would have been presented with a completely different perspective. 

“…what read in 1990 like an explanation of what made America’s political system different now reads like an analysis of why America’s system is in crisis.”

Linz suggested what seemed to be an explanation for the success of the US.  That suggestion also explains what has changed since 1990 and why crises are now upon us.  Namely, he proposed that the overlap in goals and ideologies between the two political parties was great enough that irreconcilable differences were avoided and cross-party voting on legislation occurred   That is what has changed.  The two parties are now nearly at equal strength but totally opposed ideologically.  The near equality in the national vote between the parties creates its own negative dynamic in which bipartisanship becomes irrational.

“For most of American history, including the eras of cooperative, farsighted governance civics textbooks remember most fondly, American politics wasn’t competitive.  Writing in 1965, Samuel Lubell said, ‘Our political solar system…has been characterized not by two equally competing suns, but by a sun and a moon.  The Republican Party ran American politics for most of the late nineteenth and early twentieth centuries.  Democrats held the reins in the decades following the Great Depression and World War II.  And majorities, both in terms of presidential vote totals and congressional control, were often lopsided.”

“When one party is perpetually dominant, the subordinate party has reason to cooperate, as that’s its only realistic shot at wielding influence.  Either you work well with the majority party or you have no say over policy, nothing to bring home to your constituents.”

“…close competition, where ‘neither party perceives itself as a permanent majority or a permanent minority,’ breeds all-out partisan combat.  When winning the majority becomes possible, the logic of cooperation dissolves.”

“Instead of cultivating a good relationship with your colleagues across the aisle, you need to destroy them, because you need to convince the voters to destroy them, too.”

Firmly entrenching the institution of slavery in our homeland has been referred to as “our original sin.”  That act made us unique among democracies.  It also permanently created two cultures that have been at odds, if not in battle, since the beginning: slave states versus non-slave states, South versus North, whites versus nonwhites, religious versus secular, anti-abortion versus pro-abortion, anti-union versus pro-union pro-gun versus anti-gun…the list goes on.  Two events upended our political stability.  The exodus of blacks from the South in the twentieth century is relatively well documented.  The exodus of whites from the South was much larger and has been much less appreciated.  This first occurrence did not introduce racism to the North and the West, that was already there.  What it did do was provide political correctness to the white grievance politics that would emerge after the second event: Civil Rights legislation.  Soon afterward, George Wallace would take his presidential aspirations out of the South and discover that there were many whites across the country quite willing to vote for an avowed racist.  Richard Nixon would immediately take note and send out the message that southern Democrats would be more welcome in the Republican Party.  Thus began the great sorting whereby social liberals moved leftward and cultural conservatives moved to the right.  Once the lines were clearly delineated, an existential battle could begin in earnest.

Constitutional peculiarities provide a bias towards the rural, mostly white regions where Republicans are strong.

“By 2040, 70 percent of Americans will live in the fifteen largest states.  That means 70 percent of Americans will be represented by only thirty senators, while the other 30 percent of America will be represented by 70 senators.  It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they typically control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering, pro-corporate campaign finance laws, strict voter ID requirements, and anti-union legislation that further weakens Democrats’ electoral performance.  That would not, in the long term, prove a stable system.”

There are things that could be done to correct issues that assist in our polarization, but any act that favors, even temporarily, one party over the other will be defeated by the party that deems itself the loser.  That is why the Electoral College, viewed as an abomination for two centuries, has never been eliminated.

In fact, things continue to get worse.  It might have made sense to give Supreme Court justices lifetime tenure when they were all expected to be old men who would not live very long.  But now people are living longer and the importance of a captured court to a political party is such that young people are being groomed, trained, and indoctrinated to perform appropriately at a young age if an opportunity arises to inject them into the court.

“In an analysis published after Justice Anthony Kennedy retired, law professors Lee Epstein and Eric Posner wrote in the New York Times that in the ‘50s and ‘60s, ‘the ideological biases of Republican and Democratic appointees were relatively modest.’  Even as late as the ‘90s, justices regularly voted in ‘ideologically unpredictable ways’,”

“But that’s changed.  Over the past decade, ‘justices have hardly ever voted against the ideology of the president who appointed them,’ Epstein and Posner find.” 

“Today, candidates considered for Supreme Court vacancies have a vanishingly small chance of surprising their sponsors in the future.  The path to being nominated to the Court runs through decades of ideological and professional party service.  Kennedy’s ultimate replacement, Brett Kavanaugh, was a top staffer in the George W. Bush administration in addition to being a member of the conservative legal group the Federalist Society.”

And, by the way, much of what has to be determined as being constitutional or not has no little or no constitutional input on which to base a decision.  One ambiguous sentence was provided for the Second Amendment.  Justices pondering over Second Amendment cases have little more than personal biases at their disposal.

The Constitution says that the President can nominate candidates for the Supreme Court, but to make it there they must be approved by the Senate.  Mitch McConnell made it clear that all-out war was the order of the day when he refused to consider a candidate presented by a Democratic President.  That was immoral and unethical, but it was not unconstitutional.  What might be the next weapon introduced into the battlefield.

Klein makes a compelling argument that once the two parties form opposing tribes, human nature will exacerbate tribal conflicts.  Then at the end he feels compelled to make suggestions as to how to improve the situation.  However, most of his changes would require agreement between the parties in which one gives up some existing leverage.  By his own earlier arguments, that can no longer happen.  He provides a more appropriate summary of his analysis in the following statement.

“The rules, as set down by the Constitution and our institutions, push toward partisan dysfunction, conflict, and even collapse.  The system works not through formal mechanisms that ensure the settlement of intractable disputes but through informal norms of compromise, forbearance, and moderation that collapse the moment the stakes rise high enough.”