How the Founders Built Institutionalized Suspicion Into the World’s Most Powerful Government
How the Founders Built Institutionalized Suspicion Into the World’s Most Powerful Government
Three Roommates With Veto Power Over Each Other
Imagine, if you will, an apartment shared by three roommates. The first roommate makes all the rules about what can happen in the apartment. The second roommate can refuse to follow those rules, or can refuse to implement them, or can implement them in ways that technically comply while achieving the opposite of the intended effect. The third roommate can declare the rules unconstitutional and void them entirely, but only when presented with a specific dispute, cannot proactively propose rules, and serves for life. None of them can be easily removed by the others. They must all somehow share a refrigerator.
This is the American system of government. The founders called it “”separation of powers.”” Political scientists call it “”checks and balances.”” The rest of the world calls it “”inexplicable”” and “”how do you people get anything done?”” The answer, increasingly, is that they don’t, but they’ve arranged it so that not getting things done is a feature rather than a bug, because action requires power and concentrated power is the thing they banned.
The Legislative Branch: Where Laws Go to Negotiate With Themselves
Congress – the House of Representatives and the Senate – is the branch that makes laws. This is its constitutional function. In practice, Congress makes laws approximately as often as it makes friends with the executive branch, which is to say occasionally, bitterly, and with significant collateral damage to everyone in the vicinity.
The House of Representatives was designed to be responsive to the public, with two-year terms ensuring that representatives must constantly face voters. The effect of this design is that House members spend approximately 40% of their time raising money for the next election, 40% performing for constituents in ways that have no legislative purpose, and 20% actually legislating, a figure that may be optimistic. The Senate, with six-year terms, was intended to be more deliberative and insulated from popular passion. The effect of this design is that senators are also raising money, but they have more time to do it between elections.
The filibuster – not in the Constitution, developed through Senate rule – allows a senator to speak indefinitely to prevent a vote on legislation. The original theory was that this protected minority viewpoints from majoritarian steamrolling. The current practice is that senators don’t even have to speak anymore; they simply indicate an intent to filibuster, and the legislation dies. The Senate thus has a mechanism for blocking legislation that requires no actual effort. Congress has, over its history, shown impressive creativity in finding ways to not do things.
The Executive Branch: The Job Description Written in a Crisis
The President is, constitutionally, the head of the executive branch. This means the President enforces laws, commands the military, conducts foreign policy, and nominates federal judges. The Constitution is remarkably vague about what exactly this means in practice. “”The executive Power shall be vested in a President”” – that’s it. That’s the job description. Modern presidents have found this vagueness capacious enough to drive several aircraft carriers through.
The expansion of presidential power over American history is a bipartisan project of remarkable consistency. Every president who has ever held office has, in at least some instances, interpreted presidential authority more broadly than their predecessors. This is partly because power, like gas, expands to fill available space, and partly because crises – wars, economic collapses, pandemics – tend to require decisive action, and decisive action tends to require one person making decisions rather than 535 people debating them. The founders anticipated this dynamic and worried about it. Their solution was the other two branches. The other two branches have had mixed success as counterweights.
The Judicial Branch: Nine People, Lifetime Appointments, Occasional Surprises
The Supreme Court does not appear in the Constitution with the power of judicial review – the power to strike down laws as unconstitutional. It gave itself this power in 1803, in Marbury v. Madison, and Congress has been annoyed about it ever since without quite managing to do anything about it, which is itself a testament to the Court’s power.
The Court’s nine justices serve for life, which was designed to insulate them from political pressure. What it actually does is make their appointments intensely political, since a president who successfully nominates a 45-year-old justice may be shaping American law for forty years. This has produced an appointment process of such theatrical ferocity that confirmation hearings now function as a form of political theater in which nominees demonstrate their fitness for lifetime appointment by refusing to answer any question that might reveal an opinion, because opinions are what get you questioned about opinions, and the only safe opinion is no opinion, at least publicly, before the vote.
The system works, in the sense that it continues. Courts decide cases. Presidents enforce or ignore the decisions with varying enthusiasm. Congress occasionally responds by threatening to restructure the Court, which it has the constitutional authority to do and has never quite done, because the moment you restructure the Court you have also established that the Court can be restructured, and that turns out to be a power no party wants the other party to have. Checks and balances. Three roommates. The refrigerator remains contested.
SOURCE: The London Prat