Nearing the End of the 1787 Constitutional Era?
The Two-Party Paradigm is Finally Breaking our Constitutional System
The U.S. Constitution has endured for 229 years. It has survived a litany of national and international crises, and it has done so without any major, structural changes. Even the biggest existential test the United States has faced, the Civil War, produced no underlying structural changes to our foundational law. Indeed, our Constitution has seen true structural change only twice: the 1803 Twelfth Amendment sharply altered the method for election President and Vice President–as proven necessary by the disastrous 1800 Election–and the 1913 Seventeenth Amendment provided for the direct election of U.S. Senators via statewide votes, and removed that power from the state legislatures.
This endurance is remarkable in light of how frequently or drastically other countries have amended, updated or outright rebooted their systems of government over the last two centuries. That said, it is my belief that the United States is approaching a crossroads, the intersection of which is constitutional failure. This failure will ultimately be caused by a culprit for which the authors of the Constitution failed to provide: the two-party political system.
First, some brief background. The wide-eyed idealism and naïveté of our country’s founders led them to neglect any mention of political parties in the Constitution, nor any provision for Congress to manage or arrange a partisan system. Their reasoning was noble: political parties were seen as corrupting, divisive, and vindictive. Parties, it was believed, would put their own interests and agendas ahead of those of the nation. These sentiments were expressed most emphatically by George Washington through the end of his political career in 1796. The stridency with which his Farewell Address warned of the harm from political parties was informed by competing factions forming around President Washington throughout his administration, hampering the cause of his government.
American political parties grew around the foundational divergence in American political culture: more centralized power in the federal government versus more diffuse power for the several states. Political parties and their affiliations have come and gone, but their ideological differences have generally followed that strong-government/weak-government paradigm.
Perhaps Washington was correct and political parties are an evil in the political system, but I contend that even if he is correct, that they are a necessary evil. It is natural for humans to organize themselves into groups based on ideological grounds for political purposes. What a party does is create an official structure and organization around certain ideological premises. That said, our government is severely hampered by the fact that we have, since the 1790s, settled into a two-party system.
Why a two-party system? The Constitution leaves most election law up to each individual state and the states gradually consolidated around “winner take all” — aka “first past the post” — systems for electing state and federal offices. Under such a system, the candidate with the most votes wins, regardless of what percentage of the popular they actually receive. The simple structure of a “winner take all” (or WTA) system made it preferable for state elections, and therefore the election of U.S. Representatives — for a long time U.S. Representatives were the only federal office elected directly by the citizenry. By the late-1870s, all states assigned their presidential electors by a WTA popular vote as well.
The major political parties still hold an interest in having electoral systems designed around WTA. It naturally supports a two-party system because any additional candidates become spoilers, drawing support from one or the other major party and potentially throwing the election to a candidate who does not represent the will of the majority. The major parties in a two-party system prefer this because it consolidates their control by funneling voters into supporting one of the two parties even if neither is particularly well-aligned with their interests. Voters are often heard saying that they don’t care for either party, but they ultimately vote for the “lesser of two evils” on election day.
If the two-party system has endured for so long, how is it becoming a structural problem now? Because of the structural two-party system, each party is made up of numerous factions that may all have different ideologies and goals, but form an alliance for the sake of electability. For example, the Democratic Party of 2016 was the party of labor, social progressivism, neoliberalism, minority identity politics, immigrants, and urban voters. No political force inherently ties all of those factions together except that, recently, their alliance has made a winning coalition in general elections. The Republicans have their own factions, that as of 2016 are allied.
While the two political parties have always had deep disagreements, certain factions within each have usually managed to find common ground across the aisle to create compromises and policies that have some legitimacy for each. This has worked because the parties, as well as the voters, were less ideological. Bi-partisan-cooperation also was enabled by the party leadership — so-called establishment — viewing their counterparts in the other party as a legitimate opposition and upholding long-standing norms of behavior in government. This balance allowed the two parties to navigate the lawmaking process successfully throughout the modern period.
If the practice of upholding norms, and of mutual respect and legitimacy is disrupted our lawmaking process structurally can’t work. That practice can be upset if the parties stop viewing one another in good faith, or if a more radical faction within one of the parties takes hold of the party leadership, and disrupts institutional norms.
In our current environment, both of those unbalancing factors have taken hold. Since the 2008 election of Barack Obama, Republican elites cynically determined to undermine the new president from Day One, decrying his every proposal as unconstitutional, tyrannical, and un-American. With the tacit blessing of the party, GOP officials and many American voters publically viewed the president and his party as illegitimate. The rhetoric levied against the president became so toxic that the GOP was able to reclaim the House of Representatives in the 2010 off-year election on a wave of discontent against Obama’s policies, which ironically were largely based on GOP policy ideas from a decade before.
What the GOP did not count on was their inability to control the right-wing populist forces they had unleashed into government. Far more ideological and doctrinaire than party elites, the new “Tea Party” wing of radical republicans in the House strived to push through their policy agenda under the reign of a Democratic president. A tall order, but one on which they were unwilling to compromise. The right-wing faction was willing to make day-to-day legislating untenable for their own party’s leadership, which led to several crises which were overcome only by unwieldy and precarious coalitions of Democrats and mainstream Republicans. The political cost for the mainstream GOP have been threats of right-wing primaries and agitation in the right-wing media. Most specifically, maneuvering to avoid government shutdown and default on sovereign debt led to the resignation of Republican Speaker of the House John Boehner–a man who was considered quite conservative before the right-wing ascendence in 2010.
How will increased partisanship and gridlock lead to a constitutional impasse?
We have already begun to see how partisan gridlock is cracking the constitutional foundation of our government. The reshaping of legislative norms that began in the 1990s solidified in 2009. That year the GOP minority in Congress determined to use the Senate cloture rules to demand a supermajority vote to end debate on practically every piece of legislation and appointment offered by the President or the Democratic leadership in Congress. It’s become so entrenched that it’s easy to forget this was unprecedented behavior at the time. The congressional Republicans reshaped the norms of the Senate, making it dysfunctional and the primary avenue for disruption.
The new de facto Senate requirement for a supermajority vote to accomplish any business is not in the spirit of how the Constitution designed the legislative branch to work, and the constant use of cloture votes to block appointments and legislation empowers a minority of as few as 40 Senators to stop all congressional business. While this is certainly frustrating for the majority, which wants to pass its agenda, it is most constitutionally damaging to the functions of the executive and judicial branches.
When executive branch agencies aren’t given agency leaders in a timely manner–if they receive them at all–the agency can fall into a holding pattern, unable to effectively move policy agenda items of the governing administration due to a lack of guidance. Obama has had to wait longer for cabinet approvals than any other recent president. In other cases the Senate has used their confirmation authority to try killing off agencies they disapprove of, but don’t have the votes to abolish. The Elections Assistance Commission was without any commissioners at all from 2011 to 2014. The GOP vote to abolish the commission failed in 2011, and as a result thy blocked Obama’s nominees to the panel for three years, before suddenly and unanimously confirming them. The Consumer Financial Protection Bureau (CFPB), created by legislation in 2010, was unable to begin its mandate for months due to GOP refusal to allow the confirmation of a director. This sort of partisan obstruction is a manifestation of the conservative “starve the beast” theory of governance and politics.
Also dangerous to the constitutional order is obstruction in judicial appointments. The embargo of judicial appointments by the GOP-led Senate since 2014 has contributed to the 10% vacancy rate in federal judgeships in June 2016. While the headline case of obstruction has been on President Obama’s replacement of Supreme Court Justice Scalia, the consequences for the rest of the federal bench are large. The vacancies are often concentrated in specific court jurisdictions, which can lead to courts operated well below their needed capacity. This causes backlogs in cases, extended jailhouse stays for the accused, overworked judges, and a general warping of the justice system.
Partisanship is the force behind the obstruction of judges as well. In this case, the GOP is so intent on making sure that the judiciary is not filled with progressively-minded judges that they would rather risk judiciary crisis than allow Obama to fill those seats. Partisanship over the court is not new, but the vehemence and the lengths to which the opposition is willing to go are. More institutional norms have been shattered by the GOP Senate refusing to even consider a presidential nominee until determining the outcome of the forthcoming election. Every norm that gets violated in the name of obstruction, is one more chip away at the functioning of our constitutional order.
If this process of heightened partisanship continues, sooner or later a very real crisis will occur. We have almost had a number of these events occur in the last eight years, most recently having to do with the possible breach of the legislated debt ceiling. Ultimately, these potential crises have always been averted by last minute deals by the warring parties to reestablish a sense of normality to the government. It would take just one crisis where the two sides do not come together at the last minute to launch this nation into a crisis that our Constitution provides no means to solve.
A deadlocked Supreme Court that cannot solve a contentious case? A chronically shutdown government that causes economic crisis? A breach of the debt ceiling that wrecks our the credit of the U.S.? A contested election that threatens our tradition of peaceful transfer of power?
So much of the functionality in the American system is left unsaid in the Constitution itself. It is maintained by a commitment to the political and institutional norms that have been laid down over the last two centuries. As those norms are whittled away we will, sooner or later, reach an impasse.
What can we do about it? It is not inevitable that the American people sit idly by and let partisanship destroy the country. We should push to break the partisanship that has built up. Not just with kumbaya moments and talk of unity, but by advocating for policy changes that can break the two-party polarized hold on government. Changes that would promote both moderation, and multi-party participation. Pushing towards changes to our election system, such as promoting Ranked-Choice-Voting laws at the local and state levels, can encourage consensus candidates rather than hyper-partisan ones. Moving to multi-member districts for representative legislatures allows more varied voices to have a voice in government than simply those that received 50+% of the vote.
To bring any major, structural reforms to the federal level, constitutional amendments would be required. The two ways to do this are laid out in Article V of the Constitution. One method is passing amendments through Congress followed by ratification by at least 3/4 of the states. Every Amendment since the Bill of Rights has been added by this method. The other method has never been done in the 230 years of our constitutional history: a convention called by the states to propose amendments to be voted on and ratified independently of any federal government involvement. Given the partisan levels of gridlock in Congress itself, an Article V convention may be in the cards.
When it comes to the 1787 Constitution, a structural crisis brought on by partisanship creates the possibility of needing major, structural changes to keep government functioning. Our possibilities in that scenario are wide, and fraught with danger. The chance of leaving the Constitution officially intact, but practically in tatters is all too possible, whereas the prospect of an orderly restructuring via an Article V convention seems tantalizing at best. Ultimately, the hope has to be that, when the crisis comes and the 1787 Constitutional Era comes to a close, that we replace it with something better, not worse.
ADDENDUM
Since I started writing this, the 2016 election came to a close, resulting in the victory of Donald Trump. Without making any specific predictions, Trump’s administration may be a catalyst for the very sort of crisis this article anticipates. If a figure as volatile and opportunistic as Trump is hampered by the partisanship of this political era, particularly given his initial unpopularity, there could well be increasing levels of disrespect and norm-breaking at a pace not before seen in the modern era. Stay vigilant. Creating positive reform out of a crisis is difficult. The forces of autocracy on the one hand and chaos on the other are powerful during uncertain times. Citizens who are concerned that we are reaching the crisis point must not disengage, but rather step up. Be active and involved in the future of this country, whatever form that takes.
