Pardon me while I rant, but the death of Antonin Scalia (who was ten times the lawyer that I or any of you, my dear readers, will ever be) and its subsequent political whiny fits and media-posturing by various parties reminds me that the American system of government is deeply, truly, and irreversibly (barring a Constitutional re-write) broken. It’s taken for granted that our elected officials are greedy, power-hungry, and corrupt, but they’re political cowards and immersed in bad incentives too. American government is so screwed that we cannot even pass budgets or laws anymore. Instead we get bare outlines of laws that Congress doesn’t even read, and those are passed off to unelected rule-making bodies so deep within the Administrative State that no elected official has direct control over them, to fill in the “details” (i.e., the hard and controversial parts that actually matter). And our Constitutional amendment process is so broken that we have instead come to rely on our Supreme Court to amend it for us while pretending they’re doing nothing of the kind. It’s a farce from top to bottom, and every American should be deeply ashamed of it.
The blame for this abominable situation can be laid at the feet of many people. Our elected Legislature could have the courage and tenacity to write and pass bills that are widely acceptable. The American people could bother to become educated about how government works, realize how messed up we are compared to other countries, and demand better. The Supreme Court could refuse the Constitutional amendment power that has been handed to them (and in fact, such a refusal has been the life work of Clarence Thomas). But ultimately, all of those actors are operating within a system created by our Founding Fathers, and it is principally at their feet that the blame can be laid.
The Fathers had a theory of government that posited that pitting interest against interest would lead to restrained government. That’s why the President nominates picks for the Supreme Court but then the Senate votes on them. This sounds like a reasonable solution, until you realize that what happens in practice is it creates a system where the President is incentivized to nominate the most radical candidate for “his side” (and the President always has a side, because of how we elect them) that he thinks can get 51 votes. And that makes it a big fight every time, and considering multiple Supreme Court picks, or ranking them by centrism and reasonableness, is impossible.
And basically everything in Congress works the same way. Instead of bills getting proposed, vetted, and voted on based on what would gather the most support from the greatest number of Representatives, laws are passed based on whatever the majority party believes is the most extreme thing they think can get past a Presidential veto. And it’s a huge fight every time, with a lot of bribery and arm-twisting, and the whole process is such an effort that getting detailed laws passed isn’t even possible. Oh, Congress can get in details like “Spend $20,000,000 on some highway in CA District 27”, but actual details about what the laws the bill is supposed to be about? As if! Instead the law that gets passed is a mere instruction to an Administrative agency to write a law. That’s why Nancy Pelosi said we have to pass the ACA to find out what’s in it. She was right, and her only mistake was saying it out loud where people could hear her. And what she said is true of most laws. Years after the Dodd-Frank Act was passed, years after both Dodd and Frank have retired from Congress, the rules on bank reform are still being filled in by the CFTC, SEC, and so on. We still don’t know what’s in that law, five years later.
And then there’s the Constitutional amendment process. The process as-written is so hard that it’s effectively unamendable. Instead we have cottoned onto a new process. Although the Founders never intended the Supreme Court to be a final authority on Constitutional matters, they made amending the Constitution so hard that it was easier for the President and Senate to appoint Supreme Court Justices who would allow the Constitution to be amended while pretending they’re doing nothing of the kind. Does anyone really think that the spending power should allow Congress to regulate speed limits on roads that exist entirely within one State? Does anyone think that the Commerce Clause was ever intended to allow regulation on the growing of wheat in New York, or on what substances are banner or legal in Colorado? Is there even Constitutional authority for a standing army? The plain reading of English would say “No” to all of these questions, but since Marbury vs Madison, and especially since the New Deal, the Court has taken it upon itself to find new rights in the “penumbras” of the Constitution. The more progressive wing of the Court is more blunt about this, calling for a “Living Constitution”, but even on the conservative side of the Court only Clarence Thomas, of the currently sitting Justices, has been a consistent defender of the line that the Constitution should only be amended by its written process. (And judging by the thanks he gets for that, it’s clear no one really wants him to)
So as you see, the Founding Father’s idea of pitting interest against interest, and leaving no mechanism in place for finding consensus, has really left us in a place where cooperation is so impossible to achieve that our government (the parts of it that are directly electorally answerable to the people anyway), don’t do very much. All the really important stuff has been passed off to the Supreme Court or some obscure three-letter agency just so the minimum amount of government work gets done to keep the place “not ‘all dead'”. This deplorable state of affairs has left American government sclerotic, beset by 100s of 1,000s of pages of laws which no one can read the entirety of, let alone understand, written by people who no one knows or elected, while Congress spends the majority its time voting on laws that cannot pass for symbolic (i.e., electorally important) reasons, or hitting up lobbyists for money to run their next election.
It’s no wonder under the current circumstances that Congress has a 5% approval rating, or that many Americans believe “good government” to be an impossibility. Due to the systems and incentives currently in place, they’re right. Too bad most Americans are too deeply invested in the myth of the wise Founders to really question how we got into this mess.