Is America Heading For a Constitutional Breakdown?

Today’s must-read, especially if the chaos of contemporary political news isn’t scary enough for you, is Matt Yglesias’ piece at Vox predicting some sort of breakdown for the U.S. political system if current trends continue.

Despite the alarmist headline (“American democracy is doomed”) and a few questionable parallels, Matt is reasonably careful about what he fears: it’s not a civil war, or a coup, or a putsch, though he mentions all of those catastrophes departures from constitutional democracy as things that have happened elsewhere in non-parliamentary systems where gridlock thwarts attempts at governing. But he raises a very good question about how far we’ve lurched towards terminal partisan and ideological frustration in just the last fifteen years:

Looking back at Bush’s election in 2000, one of the most remarkable things is how little social disorder there was. The American public wanted Al Gore to be president, but a combination of the Electoral College rules, poor ballot design in Palm Beach County, and an adverse Supreme Court ruling, put Bush in office. The general presumption among elites at the time was that Democrats should accept this with good manners, and Bush would respond to the weak mandate with moderate, consensus-oriented governance. This was not in the cards. Not because of Bush’s personal qualities (if anything, the Bush family and its circle are standard-bearers for the cause of relative moderation in the GOP), but because the era of the “partisan presidency” demands that the president try to implement the party’s agenda, regardless of circumstances. That’s how we got drastic tax cuts in 2001.

If the Bush years shattered the illusion that there’s no difference between the parties, the Obama years underscore how much control of the White House matters in an era of gridlock. The broadly worded Clean Air Act, whose relevant provisions passed in 1970, has allowed Obama to be one of the most consequential environmental regulators of all time — even though he hasn’t been able to pass a major new environmental bill. He’s deployed executive discretion over immigration enforcement on an unprecedented scale. And he’s left a legacy that could be rapidly reversed. A future Republican administration could not only turn back these executive actions, but substantially erode the Affordable Care Act.

The lessons of the 2000 and 2008 elections make it unnerving to imagine a Bush-Gore style recount occurring in 2014’s political atmosphere. The stakes of presidential elections are sky-high. And the constitutional system provides no means for a compromise solution. There can be only one president. And once he’s in office he has little reason to show restraint in the ambitions of the legislative — or non-legislative — agenda he pursues. In the event of another disputed election, it would be natural for both sides to push for victory with every legal or extra-legal means at their disposal.

Yglesias clearly thinks we need a constitutional overhaul, not just tweaks. I’d say there are less drastic (and more feasible) measures that would help avert a crisis, including some in plain view, like abolishing the Senate filibuster (something Matt’s been outspoken about in the past) and neutering the Electoral College (via the National Popular Vote initiative). But let’s be clear: we aren’t going back to the days of non-ideological parties fighting over patronage rather than policies. I personally think the only answer is for one of the two parties to have the power to govern just long enough to create a new framework for partisan competition in which elections really are referenda producing mandates. Until then, yeah, we are dodging bullets.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.