Constitutional Failure

Yesterday I participated in a Constitution Day event, a panel discussion talking about the Constitution and the U.S. economy. Afterwards, one of the audience members asked a question: in historical perspective, how bad is the dysfunction in Congress right now? I thought about it, and gave my answer: the worst it has been since Reconstruction. That takes some explanation. It's not that there haven't been deep divisions in the polity before -- the period leading up to U.S. entry into World War I, the 1930s, and the late 1960s and early 1970s come to mind. But I cannot think of a time when the institution of Congress itself has been so directly threatened by the actions of its members.

The possibility has always been there. Our system of checks and balances distributes policy veto points, opportunities for different groups of politicians representing different constituencies to prevent actions from taking place. One example is the grant of the power of the purse to the House of Representatives. The House cannot spend money all on its own, but because the text of the Constitution says that all spending bills must originate in the House, that body is a veto point. But we often forget that the constitutional text is not complete -- in practice, it depends on what are sometimes called constitutional conventions, understandings of the ways things are done. The House is given the power of the purse, and that works because we rely on the House not to exercise that power in an irresponsible fashion. You can make an analogy to free speech rights. If everybody exercised their free speech rights to their fullest possible extent -- if everyone acted like the members of the Westboro Baptist Church -- then there could be no broad guarantees of free speech rights because it would be intolerable. The grant of rights to citizens, just like the grant of authority to government officials, depends on the understanding that people will act responsibly most of the time.

Constitutional theorists sometimes talk about the difference between the big "C" Constitution and the small "c" constitution. The difference is between the Constitution as a legal text that permits anything that it does not prohibit and the constitution that describes the framework of institutions, distributions of authority, and limitations within which the American nation is governed. The big "C" Constitution" is an admirable if highly imperfect framework for national governance so long as the participants respect the duties that the small "c" constitution requires. Under a small "c" constitution, all the participants have to share a commitment to governing. Pushed to its system-gaming extreme, the big "C" Constitution can be used to make governing impossible.

That's what is happening in Congress right now. There is a faction in the Republican Party that is willing to wreck the institution of Congress and the national economy in order to get their way. The charitable interpretation is that these people truly believe that the successful implementation of Obamacare will destroy the country -- just as an earlier generations said that the implementation of Medicare would mean the end of freedom. In a ten-minute long recording made in 1961 Ronald Reagan warned that adoption of Medicare was the first step toward socialism. "Behind it will come other government programs that will invade every area of freedom... We are going to spend our sunset years telling our children and our children's children, what it once was like in America when men were free."

But even Reagan's wild-eyed rhetoric was not translated into a congressional strategy of institutional self-destruction. Today's Tea Party congressmen are characterized by the gleeful nihilism that was pioneered by New Gingrich in the 1990s, willing to abandon all conventions of constitutional governance in order to undo the Affordable Care Act. This is not merely the often-discussed case of a constitutional crisis, this is what the historian Mark Brandon calls an instance of "constitutional failure," the collapse of the basic principles that provide the underpinnings for the system of self-government.

If you believe that the successful implementation of Obamacare will destroy all that is good about America (and note that what these radicals fear is the success of that program, not its failure) then perhaps sacrificing our system of national government is a price worth paying. The Tea Party members of Congress are willing to burn the constitutional system in order to save it. To make that argument with a straight face takes a special kind of crazy. That brand of crazy has always been an element in our national political discourse; that's one of the things from which our constitutional system is designed to protect us. If those protections fail, then the conventions of constitutional government cease to hold. And if the conventions of constitutional government fail, the Constitution is reduced to a parchment barrier against the worst impulses of demagoguery and disunion.

I do not believe that it will come to that. John Boehner is a man of the House as well as a man of his party; he will not want to be remembered as the Speaker who presided over its self-destruction. Already, GOP leaders are trying out maneuvers to satisfy the Tea Party faction without imperiling the small "c" constitution, as in the announcement that a slew of Tea Party wish list items will be attached to a House bill to raise the cap on borrowing. There is full understanding that those provisions will be stripped by the Senate, and the expectation is that at that point the House will agree to pass the stripped-down version of the bill. But that may not be how this plays out, or even if it works this time a similar calculation may fail at the next crisis. Ultimately, Boehner may have to choose between joining a coalition of Democrats and non-Tea Party Republicans or watching the most important institution of democrat government in modern history finally and completely fail. I believe that Speaker Boehner will make every humanly possible effort to avoid that choice, but if he is forced to choose -- as I believe is likely -- I can only hope that he will choose to stand with the Congress and the constitution.