America’s Newtonian Constitution might again function according to Madisonian expectations if a provoked Congress regains its spine and self-respect, thereby returning our constitutional architecture to equipoise. But this is more to be hoped for than expected.
Even without this, however, the institutional vandalism of Barack Obama’s executive unilateralism still might be a net national benefit. It will be if the Republicans’ 2016 presidential nominee promises a return to democratic etiquette grounded in presidential self-restraint.
Not since the off-year elections of 1938, when voters rebuked Franklin Roosevelt for his attempt to pack the Supreme Court, has the electorate made constitutional equilibrium a central concern. James Madison, however, had hoped institutional balance could be self-maintaining.
He expected that the rivalries between self-interested branches would produce an equal and opposite reaction to a rival’s overreaching. This would hold the branches in a balance akin to that of the solar system, preventing the concentration of legislative and executive power in the same hands, which he defined as tyranny.
Before conservatives had the disorienting delight of Ronald Reagan’s presidency, they had a healthy suspicion of executive power, and an inclination to favor congressional supremacy. Congress, however, has long since ceased to be a reliable custodian of its own powers.