| An Abrided Case for Institutional Bias
It's no secret that the US founders had their share of aristocratic leanings. While they were far more populist than the norm for their era, they were not exactly unbridled adherents to the unadulterated will of the People. So the system they created has built in a number of elitist protections against popular will. At a glance, this may not seem to be such a problem as it plausible to think that the public might sway to and fro in popular sentiment equally and that a series of surmountable checks on their immediate will would tend over time only to prevent rapid and impertinent change.
However, this view is simply incorrect. It's the kind of illusatory equivalence that Anatole France remarked on when he said
The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
It's the same kind of "equality" that looks at a voting literacy test and judges it to be racially fair while ignoring the reality of which races tend to be illiterate. Basically it is theoretical symmetry that does not bear out in reality.
From a simple economic perspective, by definition there are always fewer rich people than non-rich people and they will tend to have different interests which don't vary much over time at core (though the specific issues change). Perhaps this sentiment is a tad Marxist, but there really isn't much in the historical record that suggests it to be false.
Nor is the design intentions of the founders the sole cause for this. Since they were largely experimenting in the system they designed, not all the mechanics and side-effects were correctly predicted. Some of their assumptions about human nature suffer from a bias toward ascribing too much faith in the ability of rationality to win out and their distaste for "factionalism" (ie Parties) was evident, yet clearly they failed to prevent the complete takeover of factionalism in their system.
So it tends to be the case over time that stifling the majority will will statistically favour elite interests since they are less often able to sway the majority behind their causes. This is the deck being stacked against progressive governance in America. You can have a good night at Blackjack, but over time, the House always wins. The institutions that govern US society are rigged to prefer conservative outcomes.
What Needs Fixing
I see the following broad areas for reform:
- The Presidency. Pardons, vetoes, recess appointments and the bully pulpit. The Presidency has grown much too powerful compared to both Congress and the Courts and even some of the original powers are dubious, nevermind the ones Cheney and Addington have stapled on.
- The Senate. Aristocratic, undemocratic, and a continuing obstacle toward serious change for the better.
- The Electoral College. This one is well known and progressives already support reform of this, but it belongs on this list and I'll mention it for completeness. Whenever the EC has mattered, it hasn't been the more progressive candidate that won the Presidency. That's not a fluke.
- The Media. Still broken and any marginal improvements made since 2000 are too prone to being wiped out by the next crisis. Basically, blogs are thus far unable to address the causes of the rot, they are only able to ameliorate the worst symptoms. I know the media is not usually in anyone's textbook of the "branches of government" but it's time to change that understanding as those charged with informing the electorate are serving a vital societal function worthy of serious systemic consideration by government and not simply abandoned to market forces (which favour conservative outcomes).
- The House. Lower on my list because it is not as bad as the rest, but it could still use improvement. Too few members, elected on pluralities and granted too little esteem vis-à-vis the more aristocratic organs of government.
Obviously this is a tall order especially if we are talking about constitutional reform. However I'd say a constitutional amendment outlawing alcohol is a crazy idea, and yet that was once able to garner the supermajorities needed to be so enshrined, so anything is possible. Further, as those familiar with the Electoral College reform movement know, it isn't always necessary to amend the constitution to improve the situation.
You might also note I didn't include the Courts here. That's mostly because my idea for improving them is to stop having Republican Presidents pick all the judges. Frankly, I'm surprised at how good the US courts still are after so many right wing ideologues have been crammed onto the benches. The Supreme Court has 7 Republican appointees and still manages to make defensible rulings from time to time. Of all the institutions of the US government, the courts have withstood the onslaught of conservativism best. So my belief is that by correcting the others, the courts will be fixed in the process without any specific institutional reform. "More and better progressive judges" about sums it up. If anything, the institution of Courts actually favours progressive outcomes, which is probably why the broad sweep of right wing judicial reforms is basically to gut the power and influence of the Courts, delegitimize their rulings and pack them with justices who defer to bad law and bad executive actions.
A Note on Means of Reform
I want to stress that constitutional and legal changes are likely not our best initial weapons in this fight. I think these fights have to be fought and won on a normative and cultural level first. The electoral bars to changing the constitution are very high, and it isn't going to happen without a shift in American culture that makes the status quo simply unacceptable.
Being a Canadian peeking in my neighbour's window, one aspect of US political culture that I find remarkable is the degree to which everyone is focused on the substantive rules as written. We've seen this recently in Chris' posts about the Superdelegates, where a great deal of attention was (mis)directed toward what the DNC rules say, and the persistent accusation that Chris was trying to "change the rules" by attempting to set an expectation that Superdelegates not overturn the clear will of the primary electoral majority.
You see this often in the form of arguments from conservatives about how, for example, President Bush was within his legal rights to fire the prosecutors; an attempt to disguise immoral actions by pointing out their nominal legality. Laws are generally an attempt to codify well established norms, and as such we should often refer to the norms and ethics that underpin the laws to decide the legitimacy of actions rather than the laws themselves. Fuck the hemlock, Socrates we are not.
All of this is to say Americans often undervalue the importance of norms and traditions in good governance. For example, the Canadian constitution doesn't even mention the position of Prime Minister. Britain has no formal constitution per se. It's largely ruled by unwritten parliamentary traditions. I'm not saying this approach is better or worse here, but just to say it is possible to have a stable system that isn't actually explicitly written down. In the US such examples are a little harder to find, but they exist. FDR failed to get Congress and the public to accept his attempt to increase the number of Supreme Court justices, despite there being no mention of their number in the Constitution. It's governed purely by norms; norms powerful enough to block a President sitting on a historic landslide mandate. Meanwhile the explicitly written provision of habeas corpus wasn't enough to prevent an unpopular president from convincing congress to suspend the right, because the norms behind it have been eroded. I guess I'm saying written constitutions are only as strong as the popular political forces willing to defend them.
Why I mention all this is to say that norms are perhaps easier to change than the US constitution. In fact, this might be the best way to change it.
Next entry, building a more progressive Presidency. |
