Is the Constitution Conservative?

A century ago progressive politicians openly expressed antipathy for the U.S. Constitution. Bicameralism, judicial review, and politics stood in the way of nonpartisan, scientific administration. Sure, the progressive argument went, bad laws might be deterred by the need for agreement among separated institutions, but just as many good laws might be deterred as well.

U.S. Senator George Norris of Nebraska”a leading progressive spokesman in the early part of the twentieth century and father of the Nebraska Unicameral Legislature”argued that the Constitution was merely a way station in the great dialectic of history between the powerful and the common people:

There arose contests between the power of the ruler and the claims of the people. The king claimed the right to take the property, and even the life, of his subjects if he found it necessary to do so to retain his power. In these contests the monarch was attempting to retain the powers he had assumed, while the people were striving to take some of the power away and place it more directly in the hands of the people themselves.

For Norris, the history of civilization is, “in the main, the story of these contests.” This includes the U.S. Constitution. The separation of powers in the U.S. Constitution, in Norris’ reading, was a reactionary move in which democracy was compromised with aristocracy. The telos of history pointed to the abolition of checks and balances on popular passion. Hence Norris’ advocacy of unicameralism instead of bicameralism, and his criticisms of judicial review and legislative committee systems.

Yet the politics of the Great Depression swept away the practical need for constitutional reform. With extended Democratic domination of all branches of the national government during the New Deal era, progressives no longer needed to oppose the Constitution to achieve their goals. After all, with the enactment of the New Deal in the 1930s, and then Great Society programs in the 1960s, along with the rise of liberal judicial activism in the 1960s, progressives and their heirs had little reason to complain about how a governmental system of separated powers prevented adoption and implementation of progressive policies.

This is, ironically, an example of how the institution of the separation of powers works. There was a significant consensus behind the congressional initiatives (and at least toleration of the judicial initiatives). Progressives could win without changing the Constitution, so the attacks on the Constitution evaporated.

But contra Norris’ expectation of the progressive utopia in which administration replaced politics, politics did not disappear. Once again Republicans frequently came into control of one if not both houses of Congress, and non-progressive theories of constitutional interpretation have once again resurrected the older progressive complaint that separated powers prevent adoption of needed policies (i.e., policies that progressives support).

In a recent column in the Journal of the American Medical Association , health economist Victor Fuchs penned criticisms of the U.S. political system that could have been lifted wholesale from a George Norris speech on the evils of bicameralism:

Many observers attribute U.S. failure to enact comprehensive health care reform to the opposition of “special interests,” such as pharmaceutical and device manufacturers, insurance companies, physicians (especially those in high-income specialties), and hospitals. But all countries have special interests; only in the United States have they been particularly successful in blocking comprehensive reform. This success can be explained in part by noting that the U.S. political system is different from the parliamentary systems of most OECD countries in ways that make special interests more effective. Some of these differences are built into the U.S. Constitution, including the checks and balances provided by two separate houses of Congress with their powerful committees, plus an independent executive branch with veto power. Some differences have evolved over time, such as expensive primary election battles, long election campaigns, and the Senate filibuster. Thus, the U.S. system provides many “choke points” for special interests to block or reshape legislation.

So, too, Georgetown Constitutional Law Professor Louis Michael Seidman recently argued that we should “Give Up on the Constitution” in a column in the New York Times :

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

Yet the progressive argument against the Constitution has never been all that persuasive, even if it be granted that it is not a perfect legal instrument (which I grant it is not).

First, the Constitution provides the rules to the political game. Consider the role of rules even in recreational games. The foul line, the distance from the pitcher’s mound to the batting box, the number of strikes or balls. None of these has an objectively reasonable prescription. Yet the games can be played only because of the rules”whatever they are. Made-up games of neighborhood children collapse quickly not because the games are intrinsically uninteresting (although they usually are), but because the creator usually can’t resist changing the rules in the middle of the game in his favor. Other children soon tire of the arguing and bargaining that substitutes for the playing, and they give up the game, exasperated.

Even a second-best constitutional system is better than a system where processes need to be made up while the game is being played. Games can be played without optimal rules; games cannot be played, however, if the rules are merely suggestions for the players.

Secondly, the Constitution’s checks and balances don’t exist to prevent policy action (as in the progressive narrative), but rather to enhance the republican foundation for actions that are taken. The multiple “veto points” in the U.S. separation-of-power system promote adoption of policies with a greater degree of consensus than base majoritarianism, and seek to promote deliberation and thus increase the quality of the legislative output. The degree to which this occurs can be debated, but the form of the institution aims to promote the representative heart of republican self-governance.

While progressives have long argued that the Constitution’s separated institutions are inherently conservative, they mistake “conservative” for what is more accurately described as “status-quo preserving.” Some of my own academic work contests that separation of powers is necessarily status-quo preserving, but even granting the belief, the implications of status-quo preserving institutions mean one thing in an era with a small national government. In an era with a wide-ranging regulatory and redistributive national government, status-quo preserving institutions do not imply politically conservative outcomes. A bare commitment to majoritarianism can just as conceivably lead to a radical, precipitate reduction in the size of the national government as it can allow the national government to grow even bigger. If progressive criticisms of the Constitution take hold and we do treat it as merely an advisory legal instrument, progressives shouldn’t be entirely surprised if the get a lot less than they thought they bargained for.

James R. Rogers is department head and associate professor of political science at Texas A&M University. He leads the “New Man” prison ministry at the Hamilton Unit in Bryan, Texas, and serves on the Board of Directors for the Texas District of the Lutheran Church-Missouri Synod. His previous “On the Square” articles can be found here .

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