Postmodern Conservative

Democracy’s “Doom,” and the Unserious Constitutionalism of Vox

It’s a bit uncanny.  Just as I’m about to embark on a series of essays that examine whether we may be entering late republican times, I come across a liberal version of the same fear, as expressed by this Matthew Yglesias Vox essay “American Democracy Is Doomed.”

Now as you’ll see soon, my account avoids any click-bait categorical announcement that our system of government is doomed.  Nor do I reassure with another kind of categorical sloppiness, that it will “muddle through,” as Yglesias’s Vox-colleague Ezra Klein does in his response.  Similarly, my account will attempt to consider more than a few factors, unlike the way Yglesias’s account determines everything on the basis of three, namely, 1) what certain comparative political science studies say about presidential constitutions, 2) the fact of increased polarization, and 3) the related increased incidence of “constitutional hardball,” which includes the phenomenon of executive legislating. 

Let’s initially concentrate on the executive legislating factor.  Now we understand what executive legislating is by talking about what Obama did, several times, and may do several more times.  But with this, as with much else in our politics today, we have to stop thinking so obsessively about Obama himself.  We must focus instead on the way this issue ought to come up in the 2016 election:  will Hillary, and the Republican nominee, promise or not promise to refrain from executive legislating?  

The liberal guys at Vox are figuring out that the way that issue will likely develop is inconvenient for them, in part because the American public will more and more think (what they finally admit that they do) that executive legislating could be dangerous to the survival of the republic over the long term.  But for the short term, a President Hillary Clinton would almost certainly be stuck with a Republican House, which means she would have strong reasons not to make any promise on executive legislating, or at least, not to keep such a promise.   

Of course, our Vox-ers are not admitting that executive legislating has been, and at least for the next four years is going to remain, a greater temptation for Democrats.  Instead they are retreating into general-sounding political science analyses that purport to objectively place blame for the emergence of executive legislating upon both parties, as well to predict that both parties will be forced to resort to it in the future.  Ah, the old “structural dynamics made me do it” excuse.

Consider Vox-er Dylan Matthews on this, in his reply to Yglesias’s piece:

The risk is that congressional gridlock — which will only worsen as parties polarize on ideological lines — will make major revisions to statutes and changes in the fiscal status quo next to impossible.

Any president worth his salt is going to want to make major revisions to statutes and to alter the fiscal status quo. …So they’re going to gradually start using executive powers to adjust policy in those domains. President Obama has been very open about this. He couldn’t get the Waxman-Markey cap and trade bill through the Senate, so he had the EPA impose carbon emissions regulations instead. He couldn’t pass the DREAM Act, so he used executive authority to protect DREAMers instead. He couldn’t get Congress to adjust No Child Left Behind, so the Department of Education started using waivers to do that in effect …Some of these actions are on firmer legal precedent than others…but the pattern is unmistakable.

As we’ll see, this is a much more elegantly simple theory of democracy’s doom than the one Yglesias provides.  Its sole focus upon the factor of executive legislating should be seen as a shortcoming, sure, but regarding that factor it makes sense.  Here’s his shocking take-away:

I’d guess that the Congress of 2050 will largely serve to ratify decisions the president made unilaterally.  My prediction is that this process will continue apace until the presidency’s powers are so immense as to be no longer recognizable. Norms that render dramatic actions impossible today will erode. Right now, it’d cause an uproar if a Republican president issued a blanket pardon for tax offenders who paid only what they’d owe if his tax plan had taken effect. But as changing tax policy through Congress becomes harder, that norm will weaken and an executive action like that will become plausible.

Too bad Matthews couldn’t have thought of this back in the summer of 2014, when firm Democrat voices might have dissuaded our president from undertaking the Big Amnesty. 

Too bad he can’t bring himself to think today that the Democratic Party ought to loudly commit itself to fight such a monstrosity of constitutional development.  Or that if it won’t, that he ought to commit himself to support the opposition party, assuming it does so commit itself.  His piece is after all titled “This Is How the American System of Government Will Die,” right?  Doing one’s best to prevent that death is a political priority that ought to outweigh all others, right? 

But let’s look at Yglesias’s essay.  It features an initial set-up, and then three key points.  The set-up tendentiously seeks to make the moves in recent decades towards executive supremacy and “constitutional hardball” the fault of both parties.  Yglesias misrepresents Bush’s “signing statements,” as per usual with liberals, and thus fails to see how what Obama did with the Obamacare adjustments went well beyond what Bush did.  Here’s my argument on that, which also notes that contrary to his promises, Obama issued many signing statements himself

Yglesias also conflates the ongoing debate about executive power in wartime, emergency situations, foreign policy, and espionage–a debate which in many ways extends back to one between James Madison and Alexander Hamilton, no less–, with the new debate about executive legislating.  Despite this dishonest framing and equivalence, Yglesias himself knows the latter is a new and distinct issue, as he shows elsewhere in the piece:

…University of Chicago political scientist William Howell told Prokop this was a “new frontier” for executive policymaking. Yale Law School’s Bruce Ackerman says Obama used “a waiver provision for modest experiments and transformed it into a platform for the redesign of the statute.” Obama’s actions are clearly legal — but they are just as clearly a decision to creatively exploit the letter of the law to vastly expand the scope of executive power over the law.

“Clearly legal!”  Got that?   But hey, it still sounds as if Yglesias thinks it’s kind of a bad thing.  Something that might, you know, “doom democracy” over the long run.  So surely, in the months prior to Obama’s amnesty action, Matthew Yglesias warned him against doing it?  Warned his fellow Democrats not to let him do it?   But no.  In fact, he wrote an early November piece that worried Obama wouldn’t be bold enough to do it

But anyhow, let’s consider his theory.  Our democracy is doomed because of the increased polarization of our era, which has provoked “constitutional hardball,” and the intersection of this with a bad constitutional system, and this time without mitigating factors that protected us in the past.  See, presidential constitutional systems like ours, as opposed to parliamentary ones like Britain’s, are bad news.  Comparative political science shows that nations that adopt them almost always succumb to coups. 

In a parliamentary system, deadlocks get resolved. A prime minister who lacks the backing of a parliamentary majority is replaced by a new one who has it. If no such majority can be found, a new election is held and the new parliament picks a leader. …there’s simply no possibility of a years-long spell in which the legislative and executive branches glare at each other unproductively.

But within a presidential system, gridlock leads to a constitutional trainwreck with no resolution. The United States’s recent government shutdowns and executive action on immigration are small examples of the kind of dynamic that’s led to coups and putsches abroad.

Well, as Klein is forced to remind him, things aren’t so hot for democratic say and government effectiveness in Europe, where parliamentary systems predominate, and as our occasional pomocon co-blogger James Ceaser recently reminded everyone in this excellent “Conversations with Bill Kristol” segment (go about 11 minutes in), the way comparative political science has typically counted the failure of presidential systems isn’t entirely fair, given the way many of them were adopted in a Latin America that was probably predisposed to caudillo-rule for cultural/historical reasons. 

Still, there is something to this argument.  Respectable comparative political science endorses the basic finding.  Yes, properly considered, the finding should lead one to further questions, given things like the French partial-adoption of the American presidential system in the wake of their 50s instability, and the fact that ours is the longest-lasting written republican constitution.  Of course, there has long been an eagerness by many liberal scholars to make a big, big deal of the finding—many of them just too obviously love a finding which calls the wisdom of American constitutionalism into question.  And alas, that spirit hovers over Yglesias’s piece.

Of course, he has to explain why the phenomenon of coups and putsches has only occurred abroad with presidential systems, and why it is only now that we might expect the same to happen here.   There’s some interesting political science findings and ideas in his explanation.  He argues that in the 30s-70s era, we weren’t that polarized in a party-vote sense, due mostly to the dynamics of the Democrat coalition regarding race, whereas in our earlier period of partisan polarization, 1870-1910, this polarization wasn’t ideological, whereas our present kind is.  So now, for the first time in our history, our rickety and confrontation-productive presidential system is intersecting with full polarization. 

…we’ve actually been lucky. No other presidential system has gone as long as ours without a major breakdown of the constitutional order. But the factors underlying that stability — first non-ideological parties and then non-disciplined ones — are gone. And it’s worth considering the possibility that with them, so too has gone the American exception to the rule of presidential breakdown. If we seem to be unsustainably lurching from crisis to crisis, it’s because we are… The breakdown may not be next year or even in the next five years, but over the next 20 or 30 years, will we really be able to resolve every one of these high-stakes showdowns [things like the tie of 2000] without making any major mistakes?

Dylan Matthews rightly objects that this errantly assumes some kind of military coup would be possible in the United States, and pretty much now, so long as a hard-to-resolve deadlock/crisis occurs.  And this assumption is merely based on this comparative political science “rule” about presidential systems, a rule which the rest of Yglesias’s theory mainly works to explain America’s lucky, er…exception to so far.  No plausible bridge from our present super-low level of coup-susceptibility, to what that “rule” would predict in the abstract, is provided. 

But the deeper problem with the theory is two-fold.  First, it shrugs off responsibility, especially liberal responsibility, and second, it is very poor constitutionalism. 

Where did this “polarization” that now makes our presidential system so fragile come from?  Did Matthew Yglesias have anything to do with it?  As a rising liberal voice, did he warn his fellow liberals against the hyperbolic tone of condemnation they adopted as the Iraq war went sour?  Did he warn against the idea of bringing Dick Cheney and American interrogators to trial?  How about against the idea of passing a huge and unexamined Obamacare bill by one vote?  Against the various Democrat moves, particularly Harry Reid’s, that have made the filibuster a likely victim of upcoming fights?  I know some of the answers to these questions, and they are not ones which contradict Yglesias having in 2008 criticized a piece by moderate-minded Democrats Bill Galston and Pietro Nivola which lamented “hyper-partisanship” with a reply that argued  “the more partisanship, the better.” 

Even the one instance that my limited searching uncovered—I assume there are others—of Yglesias standing up for civility in politics came with a sour note.  His initial response to Harry Belafonte’s 2005 suggestion that Condoleezza Rice was a Nazi-like “black tyrant” was:  “I’m increasingly inclined to adopt a ‘no enemies on the left’ mentality, but this from Harry Belafonte (via K-Lo) really is a bit much…”  Well, apply that ugly “no enemies on the left” mentality to the various instances of “constitutional hardball” undertaken by Democratic politicians.  It translates into “no firm opposition to constitutional hardball undertaken by the left.”  Yglesias reports that the coiner of the term, political scientist Mark Tushnet, characterizes “constitutional hardball” as

…legal and political moves ‘that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understanding.’ In other words, moves that do not violate the letter of the law, but do trample on our conventional understanding of how it is supposed to work.

I bristle at Yglesias’s account of the adoption of such hardball beginning mainly on the Republican side—conservatives like me think that the liberal acceptance of “living constitutionalist” jurisprudence was the first major hardball move of our era, underlined by the rather hard-hearted Bork and Thomas hearings–,but I thank Yglesias for forcing his fellow Democrats to see that in the Obama era, they have indulged in big-time hardball in any number of areas.  And honest conservative readers can see he has several valid points about sins on our side. 

But nonetheless, we have to ask, where was Yglesias’s voice during those many instances of Democrat-initiated hardball under Obama?  And why is he finally voicing his concern about this now?  Could it be that he realizes the Democrats are going to need an excuse for Hillary Clinton likely continuing Obama’s pattern?   And that there really are no good excuses other than the idea that it’s all part of a larger trend?

Unlike Matthews, Yglesias acts as if Obama’s executive legislating is just one sort of constitutional hardball among others.  He won’t admit that it is one so uniquely dangerous that it could gradually destroy the separation of powers. 

But neither he nor Matthews allow themselves to consider what the significance of conservatives’ sincerity about upholding the Constitution means to this.  All liberal carping about Bush’s signing statements and all legitimate dispute about the constitutionality of his GWOT actions cannot cancel out the plain fact that none of the major Republican candidates for president in either 2008 or 2012 would have permitted themselves, let alone have been permitted by their party, to step over the line into executive legislating.  But now, the Vox guys come forward and worry about the overall trend, one that no conservative would have enabled(at least in the most significant area), and one that they still refuse to call the Democratic Party to forswear.  

At this point, I need to defend myself in advance from a possible charge of inconsistency.  I have called for the Republican Party to pledge itself to permit the next GOP president, assuming we get one in 2016 or 2020, a set and proportionate number of executive-legislating actions specifically announced as a retaliation.  There is no contradiction between what I have said above, and my calling for a limited one-time retaliation for the sake of thenceforth maintaining the expected pattern of zero executive legislating.  Fair reading will bear this out.

Now strategically, I am having second thoughts on retaliation.  Since such a retaliation-threat would detract from the public’s understanding of what really must occur, an across-the-board pledge from Republican 2016 candidates not to do any executive legislating, coupled with a loud and coordinated demand that Hillary take the same pledge, it’s probably better to put it aside, even if we might need to return to it if the next Democratic president misbehaves.  

However that may be, I called for retaliation as an alternative to a) threatening impeachment of Obama if he did more executive legislating, and to b) the confusing defunding and depending-on-the-courts approach that the GOP has in fact adopted.  Retaliation according to prior party-caucus agreement is all about getting the offender party, the Dems, to back-down from this new sort of constitutional brinkmanship by underlining how they might have to pay; and, it does not leave the character of the pay-back to the whim of a Republican president. I’d prefer a threat to impeach, since impeachment is a remedy provided by the Constitution itself, and since the near-certainty that the Senate won’t convict if Obama or Hillary triggers action on such a threat is actually a feature, and not a bug, of such an approach.  But conservative leaders, and not just in Congress, are scared witless by the mere syllables of the I-word.  They have little sense of the sort of creative constitutional politics that is needed at present.

And that brings us to the other major flaw of Yglesias’s theory, which is its impoverished understanding of constitutionalism.  Let me begin this final part of my critique by pointing to what I think a rich conception of American constitutionalism looks like.  For as mentioned and linked to above, this week also saw the release of an interview with James Ceaser, political scientist at UVA, and author of four seminal books about the American regime.  The interview begins with the emphasis Ceaser places upon James Madison’s expectation that Americans will venerate their Constitution, as voiced in Federalist #49, and what The Federalist Papers generally reveal about the “idea of constitutionalism” that is in certain ways distinct from the Constitution itself, in that it holds us to more than the Constitution alone calls for.  Reverence is one of these things.  A “structuring of the public mind” that inclines us to always look at “what was done” whenever we consider new things to do, is another.  Certain expected ways of proceeding, i.e., avoiding what Tushnet calls “constitutional hardball,” can be a part of this also.  Another example is the deliberate return to and repairing of the two-party system in the 1830s, led by Martin Van Buren, which Ceaser discusses in this book—it was an extra-constitutional supplement designed to maintain the constitutional order.  Elsewhere, Ceaser has described all this as “political constitutionalism,” as Ed Whelan summarizes here.  But do make time to watch that interview.

To compare Ceaser and Yglesias is instructive.  Yglesias can provide charts and cite top comparative political scientists like Juan Linz, but it’s apparent he knows little about our constitutional tradition, or about political science’s long-standing relation to it, when compared with Ceaser.  Yglesias betrays no awareness of the Democrats’ responsibility to develop and articulate a political constitutionalism for our times.  Unlike leaders like Jefferson, Van Buren, Cleveland, Wilson, and even Andrew Jackson and Franklin Roosevelt, today’s Democratic leaders provide the public with no coherent account of how their party understands the Constitution and intends to defend it.  And Yglesias, despite now thinking we’re faced with the likelihood of “democracy’s doom,” makes no effort to fill that gap.  He has one suggestion, and one suggestion only: 

The best we can hope for is that when the crisis does come, Americans will have the wisdom to do for ourselves what we did in the past for Germany and Japan and put a better system in place.

You know, Woodrow Wilson also felt a parliamentary system would be better, and in his scholarly work he spelled out precisely what in the American system would have to be changed, presumably by amendment, to move it away from its presidential character.  Not only does Yglesias not discuss the amendments we would need for a “better system,” he does not consider how a politics could develop that would get them adopted, given the present two-thirds and three-fourths requirements in Article V. 

In a likely departure from what James Ceaser would approve of, and learning a thing or two from the progressive thinker Herbert Croly, I’ve called for what I call the responsibility amendment (the requirements for amending go down to 55% of Congress and 66% of the State Legislatures) as a way of making future amendments, backed by whatever side, easier to pass.  I want democratically endorsed constitutional development.   

We would know where a progressive stood, if she called for my responsibility amendment, or for Croly’s “gateway amendment” (amendment by mere majority!), as a first step to other amendments duly spelled out.  But since Yglesias provides no road-map for constitutional reform, we have no idea where he stands.  Perhaps he feels, as is so typical of his kind, that we can just rely on gradual development, unauthorized by the public or its representatives, or pushed forward by the court, to get us to adopt the better kind of constitution.  Or perhaps a dictator will do the job, the way we did with Germany and Japan.

He proposes no constitutional politics, just an unspecified hope that “we” will adopt a new constitution lock, stock, and barrel.   That is of course related to his refusal to propose any principled rules of constitutional obedience and development that his party will insist upon going forward. 

And is it not the crudest species of abstracted political thought to hold that a nation can just ditch one long-accepted constitution for another?  Juan Linz would not be impressed, I dare say.

Ezra Klein and Dylan Matthews are hardly any better.  Conservatives cannot but suspect that what Klein means by “muddling through” means no reckoning with the Democrats’ anti-constitutional enabling of bureaucratic governance, of living constitutionalist jurisprudence, and of as much executive legislating as the public will tolerate. 

And Matthews, in a previous piece for Vox, called for the abolition of the Senate!  Well, unlike many conservatives, I am aware that the compromise that gave equal state suffrage in the Senate was not in itself desirable–Madison said as much–and that over the long term it has given smaller states increasingly unfair advantages.  That’s what Matthews is mad about.  But again, a serious constitutional politics would have at least hinted at a plan for moving from point a) to point b), and Matthews provided no such suggestions.  Had he tried, he might have discovered that right there in the text of Article V it indicates that the states’ equal representation in the Senate is the only non-amendable part of the Constitution.  It says we’d have to get permission from every state to alter that.  Oops.

Serious constitutional thinking knows things like this, and accepts that we have to work with them.  It is able to explain the menu of options that are available, whereas the Vox approach employs cherry-picked findings of political science in a manner that both misinforms the reader and invites her to rail against aspects of our regime that can’t be changed by constitutional means.  Worse, it invites the reader to resign herself to major degradations of our republican system that actually still can be prevented by constitutional means.

I will say this for the Vox writers, and on this one point their worries may actually be more useful than the reassuring tone conveyed by James Ceaser:  they are right to pick up on the feeling in the air that we may have entered late republican times.

But they are incapable of proposing a realistic direction of action in response to that feeling.  This incapacity is not just a matter of fatalism, or of a refusal to admit past errors.  It is closely connected to the fact that the Vox writers prove to be pretty ignorant about America’s constitutional order and constitutionalism generally.  That might point to shortcomings of the sort of political science they claim to follow.  But clearly, it indicates that if the Democratic Party is to return to a stance of Forthright Support for the Constitution in our lifetime, and thus do its part to prevent our democracy’s failure, it will only be by rejecting their sorry example of intellectual leadership.

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