Sunday, February 07, 2010

On jumping off our Constitutional shadow

In an extended meditation over whether the United States retains the ability to cope with current problems and thrive anew, James Fallows recently concluded that the country's actual problems are manageable -- but wondered whether our political machinery maintains the ability to cope with them. The dysfunctions that struck Fallows as most intractable derive from a Constitution that has bequeathed us an increasingly unrepresentative Senate, compounded by Senate rules that evolved over time into a formula for gridlock.

A recent lament by Jonathan Chait highlights the extent to which Senate dysfunction is a product of norms of behavior as much as rules on paper (or parchment):
Many of the changes in American politics over the past three decades have involved the two parties slowly doing away with social norms that preventing them from using every tool at their disposal. The Senate minority could filibuster every single bill the majority proposed, but you just didn’t do that, until you did. You could use a House-Senate conference to introduce completely new provisions into a bill, but you just didn’t do that, until you did. (The topic became common in the Bush administration.) The possibility was always there to use endless amendments to filibuster a reconciliation bill. But nobody thought to do that until Republicans floated the tactic this week.

The “hold” is a now similar tool to what the filibuster was forty years ago. It’s a sparingly-used weapon meant to signal an unusually intense preference. A Congressional scholar reports that putting a blanket hold on all the president’s nominees has never been done before. But there’s no rule that says you can’t. It’s just not done,  until it is...

...history shows that you can’t count on social norms to prevent competing parties from trying to maximize their advantage. The only way to change this kind of behavior is to change the rules.
Few would dispute that when norms deteriorate, rules must be changed to shape new norms (hence the consensus that the country's financial regulation must be overhauled).  But there's a chicken-and-egg element in the interaction between rules and norms.

We like to think of the U.S. as a nation of laws. But laws only work to the extent that they breed norms and taboos that predispose those bound by them to obey the spirit as well as the letter.  The Bush years highlighted the extent to which the U.S. had been until that point a nation of customs -- norms to which those in government broadly bound themselves.  To paraphrase Chait: the President couldn't assert that his capacity as commander-in-chief in wartime gave him the authority to break all laws and treaties at will, until he did.  The CIA could not limit the definition of torture to actions causing major organ failure until it did (or until the Justice Department did).  The Justice Department could not impose political litmus tests on employees and job candidates, until it did.  The EPA and other Federal agencies could not edit their own scientific conclusions out of their published reports, until they did.

Writing new laws can only go so far in repairing violated norms.  And when the norms that govern government functioning itself have been torn up, the ability to write effective new laws is impaired.

Respect for norms and custom is one definition of "conservative."  A year ago, David Brooks reverently retailed the ideas of  one proponent of this kind of conservatism: Hugh Heclo, author of On Thinking Institutionally. Here's how Brooks presented the book's thesis:

As we go through life, we travel through institutions — first family and school, then the institutions of a profession or a craft.

Each of these institutions comes with certain rules and obligations that tell us how to do what we’re supposed to do. Journalism imposes habits that help reporters keep a mental distance from those they cover. Scientists have obligations to the community of researchers. In the process of absorbing the rules of the institutions we inhabit, we become who we are.

New generations don’t invent institutional practices. These practices are passed down and evolve. So the institutionalist has a deep reverence for those who came before and built up the rules that he has temporarily taken delivery of. “In taking delivery,” Heclo writes, “institutionalists see themselves as debtors who owe something, not creditors to whom something is owed.”

Curiously, Brooks did not relate relate these ideas to the institutional assault our nation had sustained from the Administration that had left office less than two weeks prior to his publishing of this column. With characteristic myopia, he lamented the decline of "institutional thinking" without a glance at the extent to which "conservatives" in America have undermined our institutions:
Faith in all institutions, including charities, has declined precipitously over the past generation, not only in the U.S. but around the world. Lack of institutional awareness has bred cynicism and undermined habits of behavior. Bankers, for example, used to have a code that made them a bit stodgy and which held them up for ridicule in movies like “Mary Poppins.” But the banker’s code has eroded, and the result was not liberation but self-destruction.

Did that "banker's code" just erode itself?  Or did politicians like John McCain, who described himself during the 2008 Presidential campaign as "always for less regulation," neuter the agencies and gut the rules that upheld that code?

As Andrew Sullivan has asserted repeatedly, Obama is "conservative" in the sense that he works by inclination and design to restore norms that make our core institutions function.  Sullivan would also have us believe that respect for institutions that have served us well, and extreme caution about changing them, is a central pillar of true conservatism. In practice, however, conservatism in most times and places has primarily concerned itself with maintaining the privilege and power of established elites.  There's a good deal of overlap, because elites create the institutions that conservatives are wary of changing.  Only to the extent that those institutions serve the interests of non-elites do "conservatives" of any stripe act in the interests of a whole people.  When a country's institutions or norms constrain the power of elites, "conservatives" -- at least those who wield actual power --  choose the interests of the elites over the norms every time.

In a democracy, there are institutions and norms that do serve the entire people, so there is some space for conservatism to expand its constituency beyond the elites. But the machinery of democracy is always imperfect, and when its dysfunctions are at issue, conservatives face a dilemma: preserve the institution, or preserve (or gasp, improve) democracy?  For example, what to do about the less-than-democratic provisions of the Constitution, chief among them the nonrepresentative nature of the Senate -- which, as Fallows points out, has grown more extreme over time? That imbalance will never be fixed constitutionally, because a two-thirds majority of the Senate will never approve it.

In fact, it is arguably that original sin of non-representationality mandated by the Constitution that is eroding the norms that have allowed our government to function, however balkily, to this point. The states with the least population are the most conservative. The rules of the Senate further magnify the power of the current conservative minority, empowering them to stop all legislation initiated by the majority. Testing the boundaries of rules, an embittered conservative minority is further shredding the norms that have governed the Senate -- in the process, discrediting the majority by rendering it incapable of passing major legislation. Rush Limbaugh's infamous "I hope he fails" has become an effective party credo. Future generations may view this moment as the will to failure of an entire nation -- ruled by its minority.

Prior response to Fallows' article here.

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