2 Constitutional Failure and the Constitution of 1787
2 Constitutional Failure and the Constitution of 1787
I. Introduction↑
The American Constitution is probably the single most important influence on American politics. It establishes the “rules of the game” for government, and like all other games, you cannot understand what is going on – and you certainly cannot play the game—unless you pay some attention to the rules. If you want to understand the game of basketball, for instance, you have to begin by considering the rules regarding dribbling, shooting, the height of the basket, defence, and so on. A different set of rules would create a very different game.
Just how important are political institutions in shaping the political life of nations? Undoubtedly, there are aspects of American politics that would have shaped the nation’s history even if the United States had adopted a parliamentary system of government. The role of the frontier and western expansion, the issues of race and sectionalism1, the prominence of religion, the challenges of technological, industrial, and international change, are some of the most prominent features of the USA that were not created by the Constitution, and these things would have influenced American politics even if they had adopted a radically different constitutional system. Nevertheless, there are common sense reasons to think that the structure of the American constitution has shaped American politics, just as the rules of basketball have made it a game well suited for the abnormally tall.
The Constitution created a form of government which is inefficient at making law. Why would we want anything to be inefficient, particularly a set of political institutions? There is a simple reason for this: in a democracy, a political system is “efficient” if it quickly implements the will of the majority, and that is not self-evidently good. Inefficiencies, understood as constraints upon simple majoritarianism, were built into almost every aspect of the American legislative process (though not every aspect of the American national government) in order to limit the power of the majority. When we hear politicians or journalists grumble about the inefficiency of American politics, and when we hear Americans speak contemptuously about the evils of “gridlock” in Congress, we must remember that these supposed defects of the American political process are not caused by moral failure on the part of politicians and their supporters. “Gridlock,” “legislative inefficiency,” “political hostage taking,” or politicians failing to respond quickly to majority will, are entirely unexceptional elements of the American political order. The inefficiency of American politics exists by design, not by accident.
Consider the conflicts over immigration reform that the United States is currently experiencing. “Immigration reform” in the USA focuses not on the question of “how many immigrants should the USA accept?” but rather on the question of whether or how to enforce current immigration laws