Cross-posted from dailykos.
If I were Harry Reid, I’d use the Alito nomination as a golden opportunity to drive a stake through the heart of the Republican Party. As we are all aware, a perfect storm of scandal, corruption, and impeachable offenses is bearing down on the Republicans. Even if a filibuster against Alito fails, Reid would at least have demonstrated resolute opposition to the Republican assault on the Constitution. It would position the Democrats perfectly for this year’s mid-terms, set the stage for Bush’s impeachment, and define the party for the ’08 presidentials. But “Democratic senators” are predicting a filibuster will fail, which means Reid isn’t pushing one, and wavering senators clearly aren’t feeling enough heat to fall in line behind a principled Democratic stand against tyranny. So, the tyrants will win. And our Constitution – separation of powers, checks and balances, Bill of Rights – is on its way to becoming a dead letter.
If it really is on its way out that really raises the question for progressive democrats whether it is actually worth saving. I’ll address that on the flip…
Now, it’s possible to make any number of criticisms of the Constitution. Republicans and libertarians routinely, and correctly, attack the federal welfare state on the grounds it violates the commerce clause of Article 1, Section 8 (just how do the OSHA regulations governing my workplace in the State of Massachusetts involve “commerce with foreign nations, among the several states, [or] with the Indian tribes”?). We could even dust off William Lloyd Garrison’s antebellum critique, that the Constitution provides specific and unique protection for the institution of slavery – an argument so accurate that in the hands of John C. Calhoun (D-SC) and Chief Justice Roger Taney it became a powerful weapon used by the Slave Power against those who sought to restrict slavery’s spread into the western territories.
My criticism, however, is different. The Constitution was designed to provide the United States with a powerful central government, and at the same time to protect the liberty of the citizens of the United States. Yet the theory underlying that balance is, in fact, fatally flawed.
James Madison, the intellectual author of the Constitution (New York conservative Gouverneur Morris wrote most of the actual text following the outline Madison had presented to the Constitutional Convention), laid out a central element of his theory for a federal republican state in Federalist #10. In this essay, required reading by the way for high school students in the state of Massachusetts, Madison argues that the most serious danger facing “popular government” is the tendency of like-minded people to form themselves into factions. For Madison, a faction is a group of people whose interests are opposed to the rights of other citizens.
If a faction succeeds in taking power, he says, it will necessarily “sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” In a “pure democracy,” such as Athens where citizens govern directly without elected officials, majority factions will always form, and “there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.”
The purpose of republican government, that is one where elected officials make public decisions, is clearly to ensure that the individual rights of all citizens are protected to the fullest in all circumstances. Madison argues that republics will not prevent factions from forming, but rather that a large republic can prevent them seizing power. It can do this, he writes, for two reasons: first, because elected officials in a large republic will more likely be virtuous (or, as he says, “it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried”); and second because factions tend to form around local interests. In a large republic, the territory will simply be too extensive for national factions to form.
The historical experience of the United States proves Madison wrong on both points. The modern Republican Party is only the most recent machine to have routinely and successfully practiced “the vicious arts by which elections are too often carried.” (For a provocative discussion of the kinds of “vicious arts” Madison had in mind, see Edmund S. Morgan’s Inventing the People; it turns out that modern election shenanigans aren’t so new…) As for national level factions, well Federalist 10 was written in November 1787. Less than ten years later, in 1796, the country’s first political parties – Jefferson’s Democratic-Republicans (today’s Democrats) and Adams’s Federalists (in many respects, today’s Republicans) – were contesting the presidential election of 1796. A key organizing figure in the Democratic-Republicans was none other than James Madison himself; in 1808, he would be elected president as the Democratic-Republican candidate. Now a political party is, by any reading of Madison’s definition of faction, perhaps the archetypal example of a faction, and there is no question that for pretty much the entire history of republican government our nation has been dominated by factions.
As the Republicans make a mockery of the constitutional separation of powers, and the Democrats acquiesce in the charade, maybe it is time to ask whether we really need it. In Common Sense, Tom Paine argued for a unicameral legislature, no executive or judiciary, and annual elections. Add to that a strong bill of rights, and we can almost certainly guarantee our freedom at least as well as the current Constitution, and probably even better.
