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.
And now it has permanent and deepening attention deficit disorder: It can neither control nor maintain meaningful oversight over the sprawling government it has created. According to historian Morton Keller in “America’s Three Regimes,” members of early Congresses were more numerous than federal bureaucrats. Today there are many more than 535 executive departments, agencies and other entities that Congress funds without effective supervision and to which a harried, distracted Congress delegates discretion tantamount to legislative power. James Buckley, in his forthcoming book “Saving Congress from Itself,” reports:
“Shortly after my election to the Senate in 1970, I was handed a recently completed study of Congress that had concluded that the workload of the average congressional office had doubled every five years since 1935. … during my own six years in office, I witnessed a sharp increase in the already frenetic pace of the Senate and an equally sharp decline in its ability to get very much done that could honestly be labeled ‘thoughtful.’ “
There have been 1,950 senators since the Constitution was ratified, and none has done as much damage as Harry Reid has done as majority leader. He has broken its rules in order to rewrite its rules and has bent its procedures, all in the service of presidential preferences.
America’s two vainest presidents, Woodrow Wilson and Obama, have been the most dismissive of the federal government’s Madisonian architecture. Wilson, the first president to criticize America’s founding, was especially impatient with the separation of powers, which he considered, as Obama does, an affront to his duel grandeur: The president is a plebiscitary tribune of the entire people, monopolizing true democratic dignity that is denied to mere legislators. And progressive presidents have unexcelled insight into history’s progressive trajectory, and hence should have untrammeled freedom to act.
Courts will not try to put a bridle and snaffle on a rampaging president, and perhaps Congress cannot, even if it summons the will to try. So we are reduced to hoping for something Madison was reluctant to rely on — executive self-restraint in response to a popular demand for it.
Fortunately, Obama’s ongoing and intensifying assault on constitutional equilibrium is so gross it has produced something commensurately remarkable — growing public interest in matters of governmental processes. Obama, who aspired to a place in the presidential pantheon, will leave office with a status more like Chester Arthur’s than Franklin Roosevelt’s, but without an achievement as large and popular as Arthur’s civil service reform.