Founding Fetters: the latent contradiction in our Constitution

It is amazing how often politicians misleadingly cite the Founding Fathers to advocate their own parochial positions. It is as if they have either not read or not understood the dilemma faced by the writers of our Constitution prior to and after its adoption. The Constitution is an inherently contradictory document. Perhaps, that is its most unusual virtue. Contradictory might strike some as an unfair characterization of a truly remarkable political achievement, but consider the problem: how can parochial and national interests be reconciled in a single national state

One can highlight the contradiction by reference to how the Founding Fathers answered the problem posed by Montesquieu with regard to governance in a democratic Republic. Montesquieu cited the dominating interest of the majority that could lord over the rights of the minorities as the primary defect of early Republics. His view, largely accepted by the Founding Fathers, posed an intellectual as well as a political challenge in arguing for passage of the Constitution.

Majoritarian dominance on domestic policy had often resulted in irreconcilable conflict that shattered the commonality of purpose of a democratic nation-state. The Federalists answered that critique by claiming that with 13 separate sovereign states, the likelihood of a dominating majority that could tyrannize over the minority views would be unlikely, because it would require the majority to prevail in a majority of the sovereign states. That might have been true if issues were strictly internal. It clearly is not the case when the dangers to a Republic emanate from abroad. It is also likely that the growth of the State, particularly in the 20th and 21st centuries, has created so many separate minority interests that a national election demands a slice and dice approach that negates articulating a well defined national Interest. The current campaign has highlighted the absence of an articulated overriding national interest, while each candidate slices and dices their parochial visions to create a majority win.

Historically, matters of national defense or foreign policy were clearly relegated not to the sovereign states but to the Presidency, subsequently ratified by a majority of national representatives. Most of the time that distinction allowed the US to achieve a seemingly definitive internal policy. A significant exception was the issue of slavery. The Founding Fathers chose to ignore slavery in the hopes that it would die a natural death over time. Unfortunately, their denial didnt work and slavery had to be killed on the battlefields of the Civil War. It had become an insuperable obstacle to the continuation of the Union.

Lincoln foresaw the problem in his losing 1858 campaign against Douglas. He went on to become the Republican nominee in 1860 and was elected because a strong minority, third party arose to divide the Electoral College, making Lincoln a minority President. Lincolns greatness as President emerged through his relentless drive to preserve the Union in spite of the secession of the slave states. His ability to focus on a strictly national issue enabled him to slowly overcome the various sectarian interests in the North. His term in office was never quiet. It was quite unruly as he coped with divisions even within his own cabinet as well as between the various abolitionist minorities within the Congress.1

Success in creating a true national interest that could override sectional or parochial interests often eluded later Presidents, the most evident of which was Wilsons notable failure after Versailles to include the United States in the League of Nations despite his own authorship. Subsequent national commitments, such as Viet Nam or Iraq have exposed that contradiction more than once. Defining a true national interest except during true national emergencies has been exceedingly difficult given our fractionated citizenry.

Perhaps the most significant override of sectional and parochial interests came in the four-term Presidency of FDR during the Great Depression. One might generalize this occurrence to suggest that only when the threat to the nation is sufficiently large can a truly national interest prevail over the suppurating sores of factional domestic interests.

This leads us to consider the implications of the current election and the presumptive nomination of two candidates who seem to evoke excessive dislike by the electorate. The Clinton-Trump election will be a raucous exhibit of our constitutional contradiction once again. Low growth, prospective budgetary crises in the future, and a continuing military campaign against Jihadi terrorism, notwithstanding, there are still insufficient threats to weld together a truly national interest policy agenda. That will create a policy-making dilemma of epic proportions. It may even create a breakdown of both major parties and the creation of a viable third party, as it did more than 162 years ago.2 The current election campaign seems excessively disjointed from the two major parties traditional platforms. The divisions are sufficiently serious as to give rise to a serious possibility of a third party once again.3

Historically, third parties have not prospered in America because they often are built around rather narrow ideological interests. Such parties are unable to play the dice and slice politics necessary for a majority electoral vote. This time, however, the presumptive nominee of the Republican Party is displaying a sharp break with traditional Republican views on the Budget, Welfare, Taxation, International Trade and Foreign Policy. Trumps success is seemingly built by his appeal to hysteria, fear among working class voters over jobs and an apparent willingness to disdain the support of women and minorities. It has led to a revolt among current Republican Party officials that is broad and likely to grow. If, in fact, the Republican Party loses both chambers and the Presidency, the party will either unify along more traditional lines or that the traditionalist faction will re-emerge as a new party that can appeal to conservative Democrats, Libertarians and (insulted) minorities. Perhaps that will constitute the healing of American politics that will allow our system to confront its current challenges

The gridlock that has emerged during the Obama administration is not exactly the failure, that political soothsayers have claimed. The failure of the Republican Party to disown and disable Obamacare, suggests that large sections of the voting public do indeed want some sort of national health care program. The difficulty is that wanting and paying are two, distinct issues. Similar considerations apply to reforming Social Security. Furthermore, paying for it, involves two rather distinct views of taxation and its consequences.

As the cost of these current programs accelerates, whoever succeeds in November will have to deal with an ensuing budget deficit likely to grow over time.4 Some economists do believe that the source of the low growth pattern of recent years is the excessive growth of the Regulatory State that inhibits small business and tends to cartelize various industries among big business that can cope with the cost of regulation. Whether the market will force an address to budget deficits early in a new Administration is not yet clear, given the desultory state of the world economy. However, one can certainly hypothesize a set of conditions that will force the budget issue into primacy. Rising wage costs, possible inflationary expectations and/or growth accelerating in the emerging markets and China could produce much higher long term interest rates and create a budgetary nightmare for the incoming Administration whatever its party colors.

The Federal Reserve has recently embarked upon considerations of the world economy as an excuse for keeping interest rates abnormally low. Low growth overseas has allowed the FOMC to vacillate, but domestic conditions could put the so-called Bond Vigilantes back on their horses. Rising long term interest rates will play havoc with the Federal budget, particularly if the US low growth performance persists. The Democratic Partys recurrent preoccupation with deflation could be rattled if actual inflation begins to emerge. Claims of deflation will then quickly turn to cries of stagflation that can create a division in the ranks of the Democratic Party.

The constitutional contradiction to which we have pointed in the actual practice of American politics could then be transformed into a national issue under appropriate conditions. Then, the pressure will grow to create a new party or radically transform the old parties. The American genius of responding to significant challenge may once again emerge, but it is unlikely to be a subtle or quiet transformation.

  1. Doris Kearns Goodwin documents those divisions in her Team of Rivals, as did Gore Vidals Lincoln. The conventional view is that Lincoln was the ablest” lawyer in a cabinet of lawyers. He managed to outlawyer them all! []
  2. The modern Republican Party emerged in 1854, running its first candidate in 1856 (Fremont), who lost. Four years later, Lincoln won in a minority election with three separate national parties running candidates. []
  3. See our post “Political Disaster as Opportunity []
  4. Underlying these spending issues, as well as the apparently neglected equipment replacement and modernization costs ofour national defense, is the apparent low growth situation that pervades recent economic history. While one candidate for the Republican nomination put out a 4% growth program, the public didnt respond to it and Jeb Bush dropped out of the race []