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Giving the Framers a Break

The American political system is broken but it’s not fair to blame that on its architects.

James Joyner
36

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In yesterday’s essay, “The Consequences of Design,” Steven Tayor correctly notes that “The convergence of design flaws in the Constitution and a flawed leader have brought us to brink of an electoral crisis.” His arguments about the unrepresentativeness of the basic system, and the ways it has been compounded by partisan chicanery and a President willing to stoop to any means necessary to retain power are quite reasonable.

For the most part, however, I resist blaming the men who gathered in Philadelphia in 1787 to craft a replacement for the Articles of Confederation for our predicament.

So, yes, having equal representation in the Senate for all states, regardless of population, is inherently undemocratic. And the error is compounded by the fact that the Electoral College doubles down on this. Further, we legislatively capped the size of the House of Representatives at 435 in 1929 and have kept it there despite the population more than doubling since.

As we all learned in grade school, this was part of the so-called Great Compromise. Because the states came to the convention as sovereign equals in a Confederation, that was the starting point of negotiations. The small states had all the leverage and there was only so much they were going to be willing to concede. And, indeed, having the House decided on the basis of population was a huge concession.

Likewise, amending the Constitution is absurdly difficult. The main path requires two-thirds of both Houses of Congress to approve a measure, which then needs to be passed by three-fourths of the states. That’s nearly impossible!

But, again, the starting point was the Articles of Confederation, which required unanimous approval of the states to amend. Indeed, major legislation required the approval by 9 of the 13 states. The Constitution was a massive step toward national unity and democracy by comparison.

The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.

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36 responses to “Giving the Framers a Break”

  1. Sleeping Dog Avatar
    Sleeping Dog

    Come on James, we need to be able to blame our current mess on someone, we’re certainly not going to blame ourselves.

    Point well taken. Today we view the founders as great liberal philosophers and the Constitution as their magnum opus, when in truth, they were politicians and the Constitution is a political document, that like all political documents was an exercise in sausage making.

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  2. Kurtz Avatar
    Kurtz

    This seems needlessly emotional and somewhat misleading. Pointing out structural flaws in a system designed 200+ years ago hardly assigning blame to any person or group.

    Hop into a DeLorean, gun it to 88, and scoop Franklin, Jefferson, and Madison to show them what Baltimore looks like now. I don’t think any of us would then harangue them for the state of West Baltimore.

    Why do you feel the need to defend a bunch of long dead people against hindsight?

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  3. OzarkHillbilly Avatar
    OzarkHillbilly

    Likewise, amending the Constitution is absurdly difficult. The main path requires two-thirds of both Houses of Congress to approve a measure, which then needs to be passed by three-fourths of the states. That’s nearly impossible!

    And yet it has been done 17 times.

    The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.

    And that is our fault to at least some extent.

    I’m not disagreeing with you James, just looking around at all the people who refuse to even entertain the idea of changing things.

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  4. Scott F. Avatar
    Scott F.

    I don’t blame the Framers for where we are today. (I don’t think Steven was blaming them either, for what that’s worth.)

    I blame those who lionize the Framers and hold the Constitution up as a sacred document. And I blame them because it is transparent that they are doing so solely in order to confound any changes to our system of government that would make it more representative and therefore less advantageous to their power.

    The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.

    Amen. The time is ripe for big structural change. One party timidly supports that. One party fights it tooth and nail. It’s time to repudiate the resisters of the necessary change.

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  5. Moosebreath Avatar
    Moosebreath

    @Scott F.:

    “I blame those who lionize the Framers and hold the Constitution up as a sacred document. And I blame them because it is transparent that they are doing so solely in order to confound any changes to our system of government that would make it more representative and therefore less advantageous to their power.”

    This.

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  6. Steven L. Taylor Avatar
    Steven L. Taylor

    @Scott F.:

    (I don’t think Steven was blaming them either, for what that’s worth.)

    I don’t blame them, either. My point was the design has consequences and, as James notes and you quote, over time the evolution of the US in size and scope means it is unlikely that a document written in the 1780s is going to be fully up to the task.

    Basically going first has had consequences because it means you likely made less informed choices than those that went after you.

    8
  7. mattbernius Avatar
    mattbernius

    For the most part, however, I resist blaming the men who gathered in Philadelphia in 1787 to craft a replacement for the Articles of Confederation for our predicament.

    The older I get, the more I am resisting the temptation of framing issues with “blame.” Following ideas from the Harvard Negotiating Project, I find thinking in terms of “contribution” to be far more productive.

    To @Steven L. Taylor’s point from yesterday, the choices they made definitely contributed a lot to where we are today — in part due to evolutions and transformations in the makeup of the country (and our technological and sociocultural contexts) that they could not have predicted at the time of the drafting in Philadelphia.

    That said, we also cannot treat them as being apart from some of those early transformations and evolutions once things got started. It wasn’t that the founders finished up the Consitution and then decided to return to their home planet. They were literally the ones who were shaping the early government for two to three decades after the ratification.

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  8. James Joyner Avatar
    James Joyner

    @Kurtz: I don’t think there’s anything emotional about the post. Nor was I ascribing ill intent to my friend of 20-plus years.

    @OzarkHillbilly: There have really been damn few substantive amendments to our governing structure via amendment. We’ve made mostly modest changes and usually in response to a major crisis.

    3
  9. ImProPer Avatar
    ImProPer

    “The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.”

    With this incredible diversity and complexity, I don’t know of any past system that is up to the task. I believe our founders put us on the best possible trajectory, and that many of our problems today are not the byproduct of their lack of vision or understanding of human nature. Our modern problems are mostly cultural, and not likely to be solved at the ballot box, or through any type of “culture war”. Like many of my fellow Americans, I am idealistic about Democracy. The inherent wisdom of crowds, not so much. This imo doesn’t make our Constitution any less needed than in the past. The world and its problems are real, and only getting more complex. Our sudden infatuation with far right and left, monomaniacal candidates are only going to exasperate this.

    1
  10. OzarkHillbilly Avatar
    OzarkHillbilly

    @James Joyner: I know, which leads to my 2nd point.

    1
  11. Kathy Avatar
    Kathy

    The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.

    Yes, but it’s not a question of blame. It’s a question of what to do about it, how to make things better.

    A good first step might be to stop the veneration of the Framers beyond what their actual, and considerable, achievements were. This would allow the defects, shortcomings, and failings of the US Constitution to be seen more clearly.

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  12. Northerner Avatar
    Northerner

    @Steven L. Taylor:

    Basically going first has had consequences because it means you likely made less informed choices than those that went after you.

    True for science, art and music as well. As Newton said, if we see further its because we stand on the shoulders of giants.

    I suspect the Founders would be disappointed to find what they came up with is still being taken as the last word by some people. Usually people hope that their work will be taken as the basis for something that grows (ie Newton would probably have been thrilled that relativity and quantum mechanics grew out of his work, and extremely disappointed if his work hadn’t inspired the research that eventually superseded it).

    Regional differences in votes per representative seem to have been the norm for much of the world at that time — the number of votes per member of parliament in Canada varies between provinces as well. If nothing else, it seems to have been seen as a necessary step in getting smaller regions to agree to join in, and I suspect it was a fairly good way of doing things back then. But times and conditions change.

    6
  13. mattbernius Avatar
    mattbernius

    @ImProPer:

    Our modern problems are mostly cultural, and not likely to be solved at the ballot box, or through any type of “culture war”.

    Cultural problems are political problems–especially when many fundamentally boil down to issues of rights and treatment under the law.

    And it gets more intertwined from there. For example treatment under the law is deeply tied to social safety structures that publicly funded. So there is no way that politics and the ballot box are not involved.

    And that brings us back to the underlying structuring structures that structure those structures (to channel Bourdieu for a moment).

    2
  14. Joe Avatar
    Joe

    Basically going first has had consequences because it means you likely made less informed choices than those that went after you.

    No matter the set of rules, Dr. Taylor, people will learn how to game them. The NFL, by way of example, continues to change rules around pass protection, pass interference and pass reception to try and fine tune who has the competitive edge because every time they set a rule, people get paid a lot of money to figure out how to game the rule. It was always a foregone conclusion that whatever the Constitution said, people would game the document. And I agree in part with Scott F. that:

    And I blame them because it is transparent that they are doing so solely in order to confound any changes to our system of government that would make it more representative and therefore less advantageous to their power.

    I don’t agree that the prime motivation is to fight representative government. It’s just to fight any rule change when they have learned how to make this one work for them.

    1
  15. Nightcrawler Avatar
    Nightcrawler

    I don’t blame the Framers. I blame the people who’ve elevated them to god-like status, and who treat the Constitution as if it were a holy document handed down to them on a mountaintop.

    Your last paragraph sums up my feelings well:

    The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.

    3
  16. Just nutha ignint cracker Avatar
    Just nutha ignint cracker

    @OzarkHillbilly: I’m not sure that I know of anyone who objects to entertaining changes in the Constitution. I know lots of people on both sides of the debate who won’t entertain changes that might work against their personal interests, however. There are RWNJ who have been working for a decade or so now to call a Constitutional Convention. They just don’t want you and me as delegates. But if “our kind” will stay out of the discussion…

    1
  17. Just nutha ignint cracker Avatar
    Just nutha ignint cracker

    @Joe:

    people get paid a lot of money to figure out how to game the rule.

    Actual conversation with a parent at a softball game I was the umpire of.

    But if that’s the rule and you are going to hold to it strictly, how am I supposed to teach my granddaughter to cheat?

    2
  18. Steven L. Taylor Avatar
    Steven L. Taylor

    @James Joyner:

    Nor was I ascribing I’ll intent to my friend of 20-plus years.

    To be clear to the broader readership, no ill intent was assumed or felt.

    1
  19. Steven L. Taylor Avatar
    Steven L. Taylor

    @Joe:

    No matter the set of rules, Dr. Taylor, people will learn how to game them.

    Trust me, I am fully aware of that. And that, in and of itself, does not concern me. Indeed, I expect it.

    My concern is not about people gaming the rules, I am concerned about when the rules themselves produce highly problematic outcomes.

    To the football metaphor, it is one thing to figure out better and more effective ways to use your 11 guys against mine, but yet another if for some weird reason I have to have 5 offensive linemen, but you only have to have 4 (and hence get an extra receiver each play than I do).

    4
  20. Steven L. Taylor Avatar
    Steven L. Taylor

    @mattbernius:

    I find thinking in terms of “contribution” to be far more productive.

    A very useful framing.

    2
  21. ImProPer Avatar
    ImProPer

    @mattbernius:

    The older I get, the more I am resisting the temptation of framing issues with “blame.” Following ideas from the Harvard Negotiating Project, I find thinking in terms of “contribution” to be far more productive.

    Thanks for this

    “Cultural problems are political problems–especially when many fundamentally boil down to issues of rights and treatment under the law.

    And it gets more intertwined from there. For example treatment under the law is deeply tied to social safety structures that publicly funded. So there is no way that politics and the ballot box are not involved.”

    Rights and treatment under the law, needs to be a ful

    1
  22. Steven L. Taylor Avatar
    Steven L. Taylor

    @Joe: Also on the football metaphor, I would note that the NFL meets and tweaks the rules on an ongoing basis.

    2
  23. OzarkHillbilly Avatar
    OzarkHillbilly

    @Just nutha ignint cracker: True enough. My bad.

    1
  24. mattbernius Avatar
    mattbernius

    @Steven L. Taylor & @ImProPer:

    A very useful framing.

    Thanks for this

    FWIW, I cannot recommend the book “Difficult Conversations” by Stone, Patton, and Heen of the Harvard Negotiation Project enough. It was sitting on my desk for months as a “round-to-it” read. Then, due to a lot of issues I’ve had transitioning into a new role/organization, I finally dove in. It’s had a really profound impact on the way I’m approaching a lot of thorny issues. Lots of “ah ha” gems in it. Plus its a super easy and fast read.

    https://books.google.com/books/about/Difficult_Conversations.html?id=D5HxtvaRzdwC

    1
  25. ImProPer Avatar
    ImProPer

    @mattbernius: @<a

    The older I get, the more I am resisting the temptation of framing issues with “blame.” Following ideas from the Harvard Negotiating Project, I find thinking in terms of “contribution” to be far more productive.

    Thanks for this.

    Cultural problems are political problems–especially when many fundamentally boil down to issues of rights and treatment under the law.

    Rights and treatment under the law should be superior to the whims and caprice of our government, and the remedy should be legal rather than political.

    And it gets more intertwined from there. For example treatment under the law is deeply tied to social safety structures that publicly funded. So there is no way that politics and the ballot box are not involved.

    Yes it does, and point well taken.

  26. Michael Cain Avatar
    Michael Cain

    The real absurdity is that we’re trying to govern a continental superpower of 330 million incredibly diverse citizens with a system devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.

    In recent years I am inclined to believe there’s no system suitable for governing a continent-spanning country with 330 million people. Especially if the Big Sort kind of thing is operating on a regional basis as well as on a more localized urban/suburban/rural sort of split. I’m perfectly willing to listen to ideas, though.

    Edited to add the last sentence.

  27. David S. Avatar
    David S.

    @Michael Cain: The main points of comparison for continent-spanning governing systems are China and India, both of which bear out your cynicism to some degree.

    I think that one thing that might help (ignoring the transition period) is a realignment of states. That is, dissolve all state boundaries and re-establish new territorial boundaries based on representative negotiations. The lines drawn would be hilariously different than they are today, for obvious reasons. (For one thing, there’d be less “draw a square on the map and call it done” going on.) The biggest non-obvious difference, I think, is that we wouldn’t have 50 states: we’d have a lot less. Maybe it’s my West Coast bias showing, but I expect a lot of states would consolidate to form larger chunks of land area. (Indeed, I would expect even WA, OR, and CA to consolidate, or at least snaffle off chunks of their eastern neighbors.)

    But that’s a pipe dream even among pipe dreams, and does not even account for AK, HI, and PR.

  28. ImProPer Avatar
    ImProPer

    @mattbernius: @mattbernius:

    “FWIW, I cannot recommend the book “Difficult Conversations” by Stone, Patton, and Heen of the Harvard Negotiation Project enough.”

    I’ll give it a read, it is actually right along the lines of what I have been meaning to study.
    I just seen that a partial reply that I thought got deleted actually posted. I did the whole thing over and posted without noticing and editing.
    Doh!!!

    1
  29. mattbernius Avatar
    mattbernius

    @ImProPer:

    I just seen that a partial reply that I thought got deleted actually posted. I did the whole thing over and posted without noticing and editing.

    No worries. My posts are full of rampant typos and not so infrequent half thoughts, so try never to judge.

    Good luck with the book. It’s pretty available both in terms of in book stores and libraries (including as ebooks). You can also get used copies super cheap.

    1
  30. An Interested Party Avatar
    An Interested Party

    In recent years I am inclined to believe there’s no system suitable for governing a continent-spanning country with 330 million people.

    And what’s the alternative? Breaking up the country? That was already tried once, with disastrous results…

  31. RonF Avatar
    RonF

    “Likewise, amending the Constitution is absurdly difficult. The main path requires two-thirds of both Houses of Congress to approve a measure, which then needs to be passed by three-fourths of the states. That’s nearly impossible! ”

    It has been done five times in my lifetime.

  32. Steven L. Taylor Avatar
    Steven L. Taylor

    @RonF: Which means you are at least 60 years of age.

    More importantly: the last truly new amendment, the 26th, was in 1971 (almost a half-century ago). The 27th is an oddity that started in 1789 and was finally approved in 1992.

    Of course, 1992 was almost three decades ago.

    Also: is 5 to be considered a lot?

  33. RonF Avatar
    RonF

    “So, yes, having equal representation in the Senate for all states, regardless of population, is inherently undemocratic. And the error is compounded by the fact that the Electoral College doubles down on this. ”

    Equal representation in the Senate for all States isn’t just inherently undemocratic, it was explicitly undemocratic. It was purposely undemocratic. To label that an error is itself an error, as it was the intent of the Founders to NOT create a pure democracy. Their study of history revealed that pure democracies devolve into mob rule, so the Senate was installed not only to give the States representation as equally sovereign entities but also to act as a check on “particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.” (Federalist Paper 63). All you have to do is to look at some of the people getting elected to the House these days to appreciate the truth in “The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” (Federalist Paper 62).

  34. Jay L Gischer Avatar
    Jay L Gischer

    I agree with @RonF in general terms. The Senate was not supposed to be democratic, though it wasn’t understood just how undemocratic it would be.

    I do have a big problem with the Merrick Garland situation, though. Given what happened, what’s to stop a Senate controlled by the party opposite the president from blocking all SCOTUS nominations?

    I do not believe for a second any expression of principle here. I think that if, for instance, Ginsburg were to lose her match with cancer, they would nominate and confirm someone in a heartbeat. It would be done by October 1, not in spite of the election but because of it.

    Most of the procedural rules don’t work, because they can be undone by a simple majority, and tit for tat mostly leads to escalation, which the judge nominating thing has been doing for the last 30 years (since Reagan nominated Robert Bork). Where’s the stable point? Expanding the court will likely lead to them doing so when the situation favors them. This is nuts. How do we get off this merry-go-round?

  35. Steven L. Taylor Avatar
    Steven L. Taylor

    @RonF: @Jay L Gischer: I would agree that the Senate was not designed to be representative, although Madison does argue for its republican character (which he linked to representative democracy) in Fed 39 (IIRC).

    Still, a real and true error made by the Founders was not recognizing how adding new states would really mess up the ratios of small to large states (let alone the scope of the country as it currently exists).

    Also: the development of the filibuster changed that chamber, and especially so in the last decade or so.

    (And it is worth noting that Madison himself wanted the Senate to apportioned based on popular as per his Virginia Plan).

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  36. Jay L Gischer Avatar
    Jay L Gischer

    @Steven L. Taylor: I agree that the filibuster in a chamber that’s already tilted away from being democratic is a bad situation. I think the filibuster is going to go away entirely. Strangely, I think we have Mitch McConnell to thank for that. I don’t like his politics, but I must admit he’s been very influential in reshaping how the Senate works.

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