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.