Tuesday, May 29, 2007

Is The Constitution The Problem?

Recently finished Politics: Observations and Arguments by the great New Yorker columnist Hendrick Hertzberg.

While the book consists of a compendium of columns written in many publications over the course of almost 40 years, certain themes find their way back over and over. One of the most striking is the idea that we owe it to ourselves to continually take a critical look at the core of our political system. Equally striking is the idea that as a nation we seem to be structurally (constitutionally, even?) incapable of taking even that step of self-examination.

First, we need to be able to look critically at the how the Constitution shapes our system. The basic problem is:
The more thoughtful critics of the system of government chartered by the Constitution point to two great flaws in it (which some regard as its greatest virtues): it is weak, and it is unrepresentative. ... The weakness is endemic and is probably ineradicable. Weakness is a function of the separation of powers... Unrepresentativeness is another story.
The unrepresentativeness is tied up in two bedrock constitutional mechanisms -- purely geographical representation in Congress and the use of the Electoral College to select the President. Hertzberg argues that both mechanisms are archaic and have outgrown their initial purposes and utility. So why do we still have them?

Well, because the second recurring theme is that there never seems to be any real chance that any meaningful change is likely to happen. Although there is every indication that the framers expected constitutional revision to be ongoing, 220 years of expreience have shown that the structural impediments to change are deeply imbedded within the document itself.
Because amending the Constitution is both difficult and dangerous, it has been only done three times on a large scale: before the mold had set (the Bill of Rights); after it had been smashed by civil war (the Reconstruction amendments); and at Progressivism's high tide (direct election of senators, the income tax, women's suffrage).
With the exception of the election of senators and the amendments to widen suffrage, none have dealt with the unrepresentativeness of the current election processes, and it is unlikely that any ever will. The hurdles in the way of amendments are too high, and the interests concerned with keeping the status quo are too powerful (although given the hurdles, they don't even have to be very powerful, mostly just interested enough).

The result?

The third theme that, like it or not, there are consequences for this inability to make significant changes.

On the one hand we've now wound up with a Congress that is essentially self-perpetuating. Incumbents can gerrymander the map of geographic districts to the point where we have elections in which less that 10% of House elections are even reasonably competitive. So a public which has been desparate for meaningful ways to show displeasure with the President's Iraq fiasco have watched that desire stymied all the way up to last week's capitulation (essentially) to Bush's desire to avoid accountability for himself and the Iraq "government."

Of course, the fact that this person is indeed the current occupant of the White House is due entirely to the persistence of the electoral college quirk in the Constitution (although as Hertzberg pointed out in December, 2000:
On the basis of the available evidence -- not least the ruthless determination of the Republican Party to use all the powers at its command, from the executive and legislative branches of the Florida state government to the five-person Supreme Court bloc (now exposed not as jurisprudential conservatives but as ideological and nakedly partisan ones), for the single purpose of preventing a fair count of the ballots of Florida's citizens -- it may now be inferred, pending the eventual recount by scholars and journalists udner Florida's freedom-of-information laws, that the president-elect (a suddenly Orwellian honorific) lost not only the popular but also the true electoral vote. Nevertheless, the election of 2000 was not stolen. Stealing, after all, is illegal, and, by definition, nothing the justices of the Supreme Court do can be outside the law. They are the law. The election was not stolen. It was expropriated.)
Without the electoral college of course, the entire fiasco would not have been necessary. Gore would have won by a much wider margin than either Kennedy in 1960 or Nixon in 1968.

Without the electoral college, maybe we still would have had an administration that consistently combined a startling degree of arrogance with a shocking amount of incompetence in fighting terrorism, in developing a coherent foreign policy, in the fair administration of justice, in showing respect for the environment, in developing an alternative energy policy, in showing concern for the future fiscal well-being of the country, in dealing with natural disasters, and in having an interest in the "Christian values" that Christ actually made mention of.

But maybe not.

Sometimes these dry-as-dust issues do have consequences.


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