The Constitution of the United States is over 230 years old. With many amendments added through the years, and with new interpretations of the Constitution, our country is still guided by a founding document written in 1787. What has made this document so enduring, argues Joseph Ellis in his book The Quartet, is not that it was written with the divine influence of providence or that it held unique support among men, but that it understood and adapted a paradoxical framework about government. Writing on our founders and the endurance of the constitution Ellis states,
“It has endured not because it embodies timeless truths that the founders fathomed as tongues of fire danced over the heads, but because it manages to combine the two time-bound truths of its own time: namely, that any legitimate government must rest on a popular foundation, and that popular majorities cannot be trusted to act responsibly, a paradox that has aged remarkably well.”
The ideas of our Constitution were not universally accepted and clear to everyone at the time of its adoption, and even today the paradox of our constitution is not well understood. Government does not rely on complete power and authority in the United States. A leading political figure, an agency, and the legitimacy of our government only persist because they can react (at least to some extent) to the popular demands of our citizens. At the same time, we have a slow process that in recent years seems to frequently grind to a gridlocked halt when a minority opposes the actions of a popular majority. This limits the ability of government or popular majority to run roughshod over the rights and liberties of a minority. While politically frustrating, this limitation of the majorities power, and the the divestiture of the majority’s power in a politically elected representative or government creates a system of government that is reactive to its citizens and simultaneously constrained from tyrannical tendencies. It may not be perfect and often does not work as well as we would hope, but through time it has evolved to allow citizens to enjoy liberty and has moved in a direction where minority factions have been preserved and protected (thought often times not well) and gained greater influence over time.
In his book, Political Realism, Jonathan Rauch argues that some of the changes we have made to the political system of the Untied States in the last several years have been self-defeating in regards to the functioning, efficiency, and effectiveness of our government. In particular, our ever expanding pursuit of transparency and the degree to which everything is recorded and open has made real debate with tough decisions more challenging. It is hard to have a debate with compromises where unpopular policies are discussed and worked through and more successful and effective legislation is created.
I was reminded of this idea from Rauch while reading Joseph Ellis’ book The Quartet. Our nation was originally founded under the Articles of Confederation, which did not pull our states together in a meaningful way to unify and promote our national interests. Replacing the Articles, however, was not a simple task and drafting a new Constitution was challenging. In many ways, the success of the new Constitution required our founding fathers to cut against many of the values they hoped the Constitution would establish for all citizens. Ellis describes it this way, “Ironically, to the extent that the delegates at Philadelphia succeeded, their success was dependent on violating all of our contemporary convictions about transparency and diversity, which is one reason why their success could never be duplicated in our time.”
Efforts to refine government and open up governance all start from a positive point of view, the belief that sunshine will act as a disinfectant, ridding politics of corruption and illegitimate deal making. The reality however, is that transparency and other reforms to make politics more open and clear can act as sand in the gears of our political machinery. Some debates require closed doors and safe spaces for compromises to be worked out. Getting legislators to organize together requires massive efforts of coordination and often requires conversations that take place outside of the spotlight as legislators and the people they represent have conflicting views and interests. It is worth reflecting on our ever growing pursuit of open democracy and remembering that our nation required what appeared to be non-democratic and non-transparent rules to get its start in the first place.
In my last post I wrote about the complexities of sovereignty, of who has the supreme power and authority in a given polity and where that authority comes from. The Revolutionary War in the United States ushered in a new government with independent states, each sovereign within their own territory, held together by a loosely constructed national government. Power and authority held within the state was derived from the citizens of the state who had come together to forge new lives in America.
This arrangement, however, was not politically stable and did not hold the states together in a way that protected the interests of each state and of each citizen within each state. A new government was needed to cement the bonds between the states, and the new government required a re-imagining of sovereignty. Today it is obvious that the Federal Government is sovereign over the state governments. It is clear to us that our elected officials represent us and receive their power with the consent of our votes, but at the time of the American Revolution and at the time of the writing of our Constitution, this was not obvious. Joseph Ellis describes the shift in sovereignty in his book The Quartet by writing:
“Sovereignty had shifted from a monarchy claiming to derive its authority from God to a legislature claiming to derive its authority from ‘the people.’ Political power flowed not downward from the heavens but upward from the citizenry. Indeed, this was the fundamental change that had made the war for independence a revolution.”
This view of power and authority was radically different from a view of a monarch ordained by God to lead a people. There were many questions that were addressed in the constitution to answer questions about how power and authority would be transmitted through the people to the governing authorities of the nation, and at the time these were new ideas that required a shift in thinking about both power and governance. Sovereignty now had a new basis for legitimacy, and it was bottom up, growing from the public and not top down from a ruler.
Sovereignty is a difficult concept, even though it seems pretty easy and strait-forward. A quick Google definition of sovereignty is “supreme power or authority,” but what this means in the real world is more muddy than what the Google definition suggests. From the quick definition one might think of the Supreme Court and suggest that the court is the supreme power and authority in the United States, but with our separation of powers, the Supreme Court’s authority is somewhat limited and is not all encompassing. The Supreme Court is a good example of the complexity of sovereignty and the challenges of truly understanding how power and authority interact within a society and government.
The most challenging question about sovereignty and authority is the question of where authority comes from. The American Revolution was fueled by the idea that sovereignty rested within the individual states, whose constitutions governed the relationship between their populations and their ruling authorities. Today, sovereignty rests far more with the federal government rather than with the states. At the time of the writing of our constitution, a fundamental shift in sovereignty was taking place between the federal government and the states. Joseph Ellis captures this conflict in his book The Quartet describing the way that Washington, Madison, Hamilton, and John Jay bent the idea of sovereignty to give rise to the sovereign federal government that we eventually came to understand today.
“The knotty question of sovereignty – did it reside in the states or in the federal government?-was the central issue requiring a clear resolution. If the federal veto proved impossible, an alternative argument, an artful finesse, might be that sovereignty was located in “the people,” a somewhat ambiguous formulation that bent the shape of the new constitution in a national direction.”
Ellis explains the way that our national focus on the individual, the liberties of the individual, and the notions of sovereignty came together to create a new idea of how governments and individuals should relate to each other. Sovereignty was believed to rest with the people, and people had natural human rights and authority which they could then divest in the government. This is not an obvious thought and idea, and even today, we have retreated from this view. We often now see the Federal Government as the ultimate authority of the land, not the people. Our rights and freedoms flow from the Federal Government which decides what we can and cannot do and which guarantees us certain rights in writing. Power and authority seem like they are strait-forward concepts, but Ellis’s writing on sovereignty at the nation’s founding and our complex shifting views of sovereignty demonstrate that it is more complex than it first appears.
The United States Constitution directly addresses slavery by apportioning slaves as counting as three fifths of a person for census counting purposes. The clauses containing slavery are some of the most disappointing aspects of our democracy, and are often viewed as a black eye on an otherwise shining document. People often say that slavery was misunderstood at the time of our nation’s founding and often try to justify slavery’s inclusion in the constitution by saying that it was commonplace at the time and not something we should judge our founding fathers against.
The reality is much more complicated. Many people, including many of our founding fathers understood that slavery was abhorrent and against the principles upon which the nation was founded. For example the Wikipedia page for Gouverneur Morris, the man who actually penned the constitution includes this quote from 1787, “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? … The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.”
At the time of the American Revolution, the economy of the Southern Colonies was dependent on slavery, and throughout history we have seen mankind fail to live up to ideals and moral principles in the face of economic threat. I believe it is fair to argue that ending slavery would have taken a king or absolute ruler given the economic incentives of the South. Joseph Ellis addresses this in his book The Quartet by writing about the decisions made around slavery during our nation’s founding. The following quote from Ellis describes a failed draft of a constitution drafted after the revolutionary war, before the adoption of the Articles of Confederation:
“Slavery was too volatile a subject to be addressed directly; indeed, there was an unspoken policy of silence surrounding the topic based on the broadly shared sense that it, more than any other issue, possessed the potential to destroy the political consensus that had formed around independence.”
To tie the nation together and lay the ground for a United States that could grow and govern itself through democratic means, the founding fathers could not abolish slavery. A professor of mine once described slavery as a scaffolding built around the principles of the Constitution for construction purposes. After completion, slavery could be removed without damaging the foundation and simultaneously enhancing the beauty of the finished project. I think it is important to accept that slavery was understood to be evil and that South allowed economic interests to trump human morality. I think it is ok to address our founding fathers and be critical of the inclusion of slavery in the Constitution while at the same time understanding that it was in many ways necessary for building the nation we live in today. This is a tough thing to look at directly, but the lesson we can learn is that we are often held short of our moral best by economic and personal self-interest, and we should be honest with ourselves about the times we act in our self-interest and not in the interest of the group so that we can avoid the perils that the South made at the time of our founding.
In America we are obsessed with being more democratic than any other nation. As the world’s oldest democracy, we have made changes to open government ever further and to be more democratic so as to show the world how great we are with our ever expanding participation in government. We love our democracy, and we constantly fight to make our democracy more representative, less driven by special interests and big money, and more accessible by the average citizen. These are all excellent goals for our country, but they contribute to what Richard Pildes has called Romanticizing Democracy.
In his book Political Realism, Jonathan Rauch reviews the ideas of romanticizing democracy and thinks about political participation from a realistic and pragmatic point of view. What Rauch finds and what is important to remember is that more participation in government and more direct democracy does not necessarily translate into better outcomes. He writes, “The general assumption that politics will be more satisfying and government will work better if more people participate more directly is poorly supported and probably wrong.”
Rauch is not arguing that fewer people should vote in elections or be knowledgeable about issues, programs, and what is taking place in government, but that our country does not need to continually reshape systems and institutions to be ever more democratic simply because they could be more open. When we push government to rely on more direct democracy, then our systems require more input from a citizenry that is poorly informed of any given issue. Continually opening government or forcing government to rely on input from public constituents makes it more likely that issues will become polarized, leading to charged discussions driven by shadow actors. Rauch writes, “Where direct engagement with politics is concerned, the polarized and financially interested have an inherent advantage.”
Not everything in our system should be operated by and determined by the opinions of experts, technocrats, and academics, but at the same time not everything needs to be decided by direct referendum from the public. Some features of government should be opened to the public, but other aspects are poorly understood by the public and do not need to be completely open. On his podcast The Ezra Klein Show and on his media company’s show The Weeds, Ezra Klein has often remarked that congress (which we have made more democratic and transparent) has dismally low approval ratings while the Supreme Court (which is less democratic and less transparent than almost any other part of government) has very high approval ratings. More transparency and direct participation does not always mean better outcomes and a more satisfying democracy.
I am currently studying for a masters in public administration at the University of Nevada, Reno. Last semester I took public policy class which included a comprehensive exam. The comp rounded out to just over 50 pages total, and of the prompts for the comp looked at the question, “is the bulk of public policy really just a question of policy implementation?”
I have thought deeply about the actual implementation of policy and what it looks like to design and create policy with implementation in mind. Focusing on implementation is important if one actually wants to achieve the stated objectives that form the base of a policy. We have to consider the goals, objectives, limitations, support, and objections of policy actors big and small, central and in the periphery, and those who are vocal or those who have their voices generally ignored. In one sense, good public policy is policy that can actually be implemented, and understanding the implementation challenges is central to designing policy that is actually capable of addressing the problems and issues that we face.
Implementation is active governance. A quick Google search defines governance simply as the action or manner of governing, and implementation is the most clear demonstration of governance. Good implementation should be a moderating force in politics. Good governance is capable of addressing issues and putting programs in place to address real problems and issues that impact people’s lives.
Our country, it unfortunately feels, has abandoned governance in favor of self-interest and tribal power. We have turned away from traditional political structures in favor of outsider organizations and groups. We are less likely to compromise on issues that most people only vaguely understand and have become more entrenched in ideologies that do not truly describe our beliefs, but do clearly signal our support for a specific political team. Jonathan Rauch is critical of this trend in American politics in his book Political Realism and writes about the organizations that have arisen to fuel our ideological battles at the expense of governance. He writes, “They are distinctly amateur (or activist) in the important … sense that their interest is in issues and purity, not in the messy and compromising work of governing.” Pure adherence to an ideology and our tend toward the rejection of traditional power structures is emotionally powerful, but it is an abandonment of governance.
Adherence to ideology ignores implementation and realistic constraints on public policy. What we really do when we support such activists is signal our tribal adherence in a political fashion and we simplify real issues in a way that puts us in the moral high ground from which we can use outrage to prop ourselves up. Good governance is flexible and does not adhere to strict ideological constraints. Policy implementation requires compromise and views other actors as legitimate, even if their beliefs and opinions differ from our own. Political activists view their opponents as enemies with illegitimate opinions. Traditional political forces make use of compromise and seek good governance where political amateurs adhere to political hard lines to demonstrate their support and alignment with a specific identity or tribe. As we have moved away from traditional structures in favor of outsiders and amateurs, we have forgotten governance and abandoned real issues and real public policy that could actually be implemented to address issues in American life.