Back to Ambition Countering Ambition
Back to Fed 51 and this moment in oversight: we have to remember what ambitions drive politicians.
This morning I note an example of what I was describing in my post yesterday about believing the narrative of checks and balances without taking into consideration the real political motivations of actors.
The example comes from the editorial board of the Salt Lake City Tribune: Tribune Editorial: Ambition must be made to counteract ambition. The piece quotes pretty much the same passage from Federalist 51 as I did yesterday. They then state:
By abandoning the role the Constitution assigns them, to jealously defend the power of their branch of government against encroachments by other branches, Republicans in Congress surrender their duty, their power and their part in defending American democracy.
Ambition no longer counteracts ambition.
We see here exactly what I was talking about yesterday in my post: an appeal to the idealized, intro to US government version of separation of powers and checks and balances which does not take into the way in which political parties change that dynamic. The issue is not in a situation like this one of branch v. branch. Partisan concerns clearly supersede branch needs here.
Indeed, the piece shows that it is buying into mythology more than fact by talking about “abandoning the role the Constitution assigns them, to jealously defend the power of their branch of government against encroachments by other branches.” The constitution itself says no such thing and assigns no such role or responsibility. Madison certainly argued that the design of the institutions would lead to those kinds of behaviors, but the constitution itself not explicitly create any obligations for members of congress to act that way. Further, the reality remains that as impressive a theoretical statement as Fed 51 is, it remains also (and, really, chiefly) a propaganda document designed to convince New Yorkers to ratify the constitution. It is not the Rosetta Stone that tells us How Things Are Supposed to Work. It was a combination of Madison’s understanding of how he thought the new government would work as well as a persuasive essay designed to allay fears and rally support.
Further, the focus on ambition counteracting ambition shows, again as I noted in the previous post, poor political analysis that relies on the mythology of the constitution without thinking through what actual ambitions are driving politicians. The short version remains: the ambition that drives politicians is re-election more than any other. It certainly isn’t an abstract need to fulfill the fantasy that the legislature will always stand up to the executive because, well, that is way they said it would work back in high school civics.
Note: this fact, that re-election is the primary ambition that drives politicians, is why I think elections are so important and, more specifically why I harp on issues like electoral rules and whether they create responsiveness and representativeness or not. Rules that create unresponsive politicians (as it pertains the broader population) is what gets us the kinds of problems we are currently experiencing.
I won´t replicate my entire post from yesterday here, but will point interested readers in that direction: Partisanship, Separation of Powers, and the Limits of Oversight.
It’s always a pleasure to see someone recognize the Federalist Papers as sales brochures, not some sort of appendix to the Constitution.
@gVOR08: I don’t want to sell short the degree to which is does contain some impressive attempts at theorizing. But yes: to treat it like, as you say, an appendix to the Constitution is simply incorrect.
Heck, some of the early stuff that Madison wrote was based on work he had done before the Constitution had been written (the stuff on confederacies as well as Fed 10). Indeed, the basic logic of Fed 10 about how to control government (based on a theory of factions) is quite different from the checks and balances argument in Fed 51.
The goal was ratification, not perfect explanation, let alone a guidebook to how it should work.
I once drafted a preface of Jack London’s White Fang. (For my wife.) London misunderstood evolution, in particular ‘survival of the fittest.’ He, like many people, translated it to mean ‘survival of the most vicious.’ But of course ‘fit’ was never about aggression or strength, it was about adaptation to one’s environment. Indeed, it’s obvious when you contrast the number of wolves in existence today, versus the number of rabbits.
Republicans are rabbits. They are adapting meekly to their environment. Now, homo sapiens contra the general rule, has not come to dominate the planet merely by adaptation, we are a species capable of altering the environment to suit us instead of the other way around. Strong humans do this, weak humans tug a forelock and eat a f’ing carrot.
I would just add that most people do not seem to understand how powerful Executive Branch and indendent agency rulemaking is. It really is shadow legislation, arguably a de facto fourth branch of government. I think the judiciary made a mistake in allowing this to grow to where it is today.
With regard to the reality of institutional prerogatives described in your post, in your view has it always been this way or was there a time when institutional prerogatives mattered more than they do in today’s hyper-partisan environment? This is not an area I have researched.
@gVOR08:
I don’t think they are merely sales brochures. They also provide historical context and give us the reasons behind some of the decisions and intentions behind the Constitution’s design.
@Andy:
I would say that while there may be examples of institutional prerogative being central, that on balance the issue has been, basically from the beginning, about party (even before the full formation of the party system as we understand it).
Just look at Madison (the politician, not the theorist) and Jefferson v. Hamilton in the Washington administration.
Heck. Jefferson was part of the executive, but was often working against it for what we would describe as partisan reason (i.e., he had different policy preferences).
@Andy: He overstates for effect (at least in my interpretation–he can speak for himself).
Nonetheless, the basic sentiment, if not especially reverent, is accurate.
No, they provide us with ex post facto arguments made to further ratification.
What you describe can be found, as much as it exists, in Madison’s notes from the convention.
@Steven L. Taylor:
I think they can be (and are) both that as well as a window into some of the design choices.
And really, we see this all the time in similar legislative activities – politicians explain to people, after the fact, why legislative choices were made. Yes, it is self-serving and they are selling the legislation they drafted or supported, but they are also informing and explaining the purpose and intentions.
So I think it is wrong to suggest the Federalist Papers’ only utility rests in the specific goal of ratification. They are obviously that, but they are valuable for other reasons as well.
@Andy:
And I have been explicit that this is my view.
@michael reynolds:
I think there is a strength in knowing where you fit in, and accepting it.
We’ve done a pretty spectacularly bad job of shaping our environment, as global warming demonstrates. We may be shaping our environment to a point where we can’t survive in it.
For some reason, I’m reminded of The Lion King and Watership Down. Both are about the circle of life, but in the former, it’s all about Simba reclaiming his birthright at the top of the chain, while in the latter it’s terrifying bunny on bunny violence that will scar children for generations when their father takes them to see an animated movie about adorable bunnies… I mean, the later is about ensuring the survival of the community.
Not sure what my half-formed thought is, or why it won’t form. I was hoping attempting to write it down would help, but nope.
@Andy:
Don’t underestimate Congress’s own culpability there. One reason the regulations often extend so far beyond the content of the legislation is that the legislation itself was ambiguous, contradictory, incomplete, and generally inadequate to accomplish any goal. Sometimes this was the result of deliberate compromise — in order to get enough votes to pass, the bill had to lose the key phrases that made the drafters’ intent clear.
Once in my life, I spent a few months helping to draft implementing regulations for federal legislation that involved such a compromise. Our version was never published, because it was far too clearly written and made it unambiguous that the drafters had not, in fact, succeeded in getting their hidden agenda made into law… (It also conformed to the Executive Order on “plain language”, which sent the Office of General Counsel into apoplectic furies.)
@Gustopher:
I’ve been spared the animated movie, but Watership Down was one of my five favorite books for a long time. When I turned 50, I went back and re-read it, fully expecting to find that it had aged even worse than I have. I was surprised and delighted to find that it was as astonishingly wonderful as ever, even to my jaded mature self.
I first read it at age 13 or so; perhaps that was old enough to avoid the worst PTBSD.
@Steven L. Taylor:
This point can’t be emphasized enough. Everyone likes to tout “the genius of the Framers” in such institutions as bicameralism and the Electoral College even though even grade school civics tells us that these were political compromises, not intentional devices. Madison, Hamilton, and Jay did a fantastic job of turning lemons into lemonade with the sales job.
@Steven L. Taylor: Snarky? In a blog comment? Moi? Yes, I overstate for effect. And thank you.
Of course the Federalist Papers provide reasons. And after the fact rationales. As do the so called Anti-Federalist Papers and other contemporary punditry. And they all provide context. I saw someone comment that if you want to understand how people lived in the recent past, read detective fiction. They’d be accurate about details of day-to-day life. But you wouldn’t cite The Maltese Falcon to support an argument about habeus corpus.
@Steven L. Taylor: Can’t the Federalist Papers be considered analogous to legislative history as applied to the Constitution? Comments by legislators about pending (and completely formed statutes) explain, if in a narrow and perhaps self-interested way, the meaning and purpose of the legislation.
@dmichael: Sure, they provide some amount of context, but pretty limited context when you realize they were basically just the views most of two guys (Jay was less influential than either Hamilton or Madison).
I think they are often given out-sized significance in things like SCOTUS decisions.
And please note: I am admirer of the Federalist Papers–I just find that they should not be treated like holy writ.
@Andy: In fact, a lot of what you’ve mentioned gets scooped up under the terminology “Administrative Law”, which means quite a few of the processes get the same Constitutional checks-and-balances you find in the rest of the legal system.
A lot of it has developed because we’re NOT a sparsely-inhabited country dependent on agriculture and hunting, but a highly industrialised economy with 10,000% more population.