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What Exactly Is Our "broken System"?


On October 17, 2007, John Edwards told an audience in Keene, New Hampshire the following : 

Here’s the truth: the system in Washington is broken. Money is corrupting our democracy. Lobbyists and the special interests they represent are pouring millions of dollars into the system, and stopping the change we need dead in its tracks.

Our founding fathers intended our government to do the will of the people. But today, it’s doing the will of the special interests instead.

There is, I think, much truth in former-Sen. Edwards diagnosis.  As one reads of the ever-more-gridlocked Congress--or, more to the point, perhaps, a Congress where the ostensible majority of Democrats is effectively deprived of the ability to pass legislation by a mixture of the Senate filibuster and the threat (and reality) of presidential veto--it is impossible not to share his belief that "the system in Washington is broken."  But Mr. Edwards' mistake--and, of course, he is not alone in this--is that he prefers to stick to the well-trodden path of blaming only "money, lobbyists and the special interests they represent" instead of offering a truly serious analysis of our political system.  Such an analysis would require a far more skeptical analysis of "our founding fathers."  It is, one should recognize, little short of preposterous to state that they "intended our government to do the will of the people."  As many readers of Open University reminded me in earlier months, when I was offering a variety of criticisms of our undemocratic Constitution, the framers were by no means either democrats or, even more certainly, contemporary Democrats.  They were republicans (note the lower case) who did what they could to put a variety of stumbling blocks in the way of anything that we would today recognize as democratic government.  I do not necessarily blame the founders for doing this.  As Akhil Amar and others have pointed out, relative to their historical situation, they were far more "democratic" than any other group of national leaders.  But that is only to say that they rejected Monarchy and Aristocracy, not that they were in the slightest committed to anything that we would today recognize as robustly democratic (beginning, for example, with genuine respect for the principle of one-person/one-vote that is so spectacularly violated by the Senate, the Electoral College, and the presidential veto).  If I am disinclined to bash the framers, who deserve most of the praise they receive as historical actors, I have no reluctance to bash 21st century Americans such as Sen. Edwards.  He is, alas, all too typical in his unwillingness to emulate such past leaders as Woodrow Wilson and Theodore Roosevelt, for starters, who were not afraid to suggest that our 18th century Constitution was as much a source of our problems as a solution to them.  That would constitute real leadership of a kind missing in any of the contemporary candidates (including my own favorite, Sen. Obama). 

One reason that lobbyists put so much money into presidential campaigns, for example, is their recognition that we have a tricameral and not a bicameral legislative system, as is being demonstrated every single day.

If one wishes to block change, the cheapest way to do it is to buy a President who will veto threatening legislation and/or use his (or, perhaps, beginning in 2009, her) powers to affect change in the bureaucracy without a scintilla of explicit congressional authorization.This latter point suggests that in some respects we have the worst of all worlds:  a tricameral system with regard to explicit legislation and a unicameral president/legislator with regard to the bureaucracy.  Of course, one might well understand why a presidential candidate might be reluctant to lead a serious discussion of whether "we the people" are well served by the continuing massive presence of the policy-based presidential veto in our political system.  No doubt Edwards--and, of course, Clinton, Obama, and everyone else seeking to be President--relishes the potential use of that power to bring to heel a recalcitrant Congress, regardless of the fact that the Congress, collectively, may plausibly claim to represent far more of the American public than any given President.  (And, of course, most Democrats no doubt are quite happy about the prospect of a Democratic President becoming the third legislative chamber, and we would look to Republicans to start whining.  The point is that "We the People" collectively, Democrats and Republicans alike, would be better off without such a third chamber even if, at any given time, one can be assured that one of the two major parties will embrace the veto for partisan purposes.)

Perhaps some of you relished my absence from the Open University because you were tired of my attacks on our sacred Constitution.  Well, for better or worse, I'm back, and I'm no happier about the state of our public discourse.  Former-Sen. Edwards is not a stupid man, and there is much to admire in his campaign.  But he is disserving us in presenting only another version of our classic hero-villain narrative so beloved on the left (the right, of course, has its own version) instead of recognizing that "the system" we operate under is to an astonishing degree exactly the system bequeathed us in 1787 by well-off gentlemen petrified, as spelled out especially by Alexander Hamilton in Federalist #78, that the haves might, in a true "democracy," be challenged by have-nots.  The basic aim of the Constitution, as the founding fathers were candid enough to admit, was to assure the futility of any such challenges.  They haven't succeeded completely, obviously.

Every now and then (1934-36, 1964-66), the stars are aligned to allow significant victories.  But they are few and far between, and, frankly, there is no good reason to rely on 2008 being such a year, even if the Democrats manage to gain the White House and keep Congress.  And such transformative moments will get no more frequent until we are brave enough to have a serious conversation about what should be jettisoned in the present Constitution as well as what should be preserved.  If only it were so simple as clipping the power of monied lobbyists!

--Sanford Levinson