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If you’re sick of gridlock, blame the Constitution

MinnPost illustration by Jaime Anderson

One in a series of articles.

What’s bothering you? And what’s causing the bother?

Judging by polls (and what else do we have to go by?), a lot of things are bothering us about our politics, our government, the direction of our country, the choices we have in the coming election, the quality of the discourse, the way the campaign is conducted.

As the calendar creeps closer toward the “fiscal cliff” (also known as “taxmageddon”), let’s throw out a couple of bothersome examples: Gridlock, brinksmanship, hyper-partisanship, having to vote for the lesser of two evils.

Why can’t they get along or compromise or put the national interest ahead of their political squabbling?

If you are a Republican, you may also have been majorly bothered by the recent Supreme Court decision upholding the constitutionality of the major elements of the “Obamacare” law. If you are a Democrat, you may be upset about how close the (conservative-dominated) Supreme Court came to striking down that landmark law, or you may still be upset about a different, slightly older, 5-4 Supreme Court ruling, in the Citizens United case, that created the current superPAC-ification of our already out-of-control campaign finance system. In the term that just ended, the justices declined to change their minds about that one.

If you are a Floridian or Ohioan or resident of any of the eight to 10 designated swing states (and assuming you don’t own a TV or radio station), you may be bothered by the wholesale purchase of air time in your community for the endless repetition of scary-voiced half-truths designed to make you want to vote against Barack Obama or Mitt Romney in November, either of whom (depending on the ad) is a threat to your life, liberty or happiness, or least to your Medicare, and everything that’s good and decent about America. If you are a resident of Minnesota or any one of 40 or so other states that have been designated as non-battlegrounds, you may feel slightly neglected, taken for granted and maybe irrelevant in the race for president.

Well, we could go on, but let’s stop for now with those examples. What is causing these botherances?

We tend to attribute them to what we take to be the proximate cause, namely the most recent actions by the current actors. Perfectly reasonable.

And — because of the worshipful attitude Americans bring to the founders of the Republic and the Framers of the U.S. Constitution — we are unlikely to think about the degree to which the botherances are rooted in the rules and the system that the Framers gave us in 1787.

But, at the risk of committing sacrilege, to the extent that they are about the way our government is functioning or malfunctioning, our botherances are rooted in the system, as written by the Framers, as amended, as revised by various Supreme Court interpretations and as evolved by other slightly mysterious means.


A lot of aspects of the Constitutional system are invisible to us because we are so used to them. Since this is a presidential election year, the Electoral College system is a good example, and as this series progresses the sources and history of that strange system will be under the microscope. But I can tell you this for starters: A great many new democracies have created systems of government since 1787, and they have had the benefit of the U.S. example. They haven’t adopted anything like the Electoral College system. In fact, none of the newer democracies has embraced the U.S. Constitution as the model they wanted to follow.

And many things that most Americans think are in the Constitution are not — at least not explicitly. For example, read Article III, establishing the Judicial Branch. Not a syllable of it grants the Supreme Court the power to overrule the more democratic legislative and executive branches on what laws they can pass or how to administer them. This is at least an awkward omission, considering how fundamental to our understanding of the balance of power this authority is. And this should be especially awkward to those conservatives who take the position that the federal government has no powers other than those explicitly enumerated in the Constitution. 

For today, let’s focus on the “gridlock,” which may rank at the top of the list of currently fashionable complaints.

Imperfect Union: The Constitutional roots of the mess we're inSenate Republican Leader Mitch McConnell probably regrets having said in 2010 that his top priority is to make Barack Obama a one-term president because his statement has become the symbol for the idea that the Republicans are willing to sabotage the economy if necessary to set them up to win the 2012 election. But he’s stuck with it. And it offers — at least to liberal/Democratic ears — a simple explanation for gridlock. We have gridlock because the Republicans won’t compromise because they want Obama to look bad so they can win the next election.

For the moment, I’m not so interested in how true and/or fair that summary is (although much deeper poli-sci thinkers than myself subscribe to it). I want to raise a more fundamental question.

It’s the most natural thing in the world for Mitch McConnell to want his party’s candidate to win the next election, and to do what he can to bring that about. Don’t fault him for that. Winning elections is, in a sense, why political parties exist. But McConnell is only the minority leader of the U.S. Senate. How can he, in a democratic system, bring about gridlock?

Well, the problem is that our system is built for gridlock. It creates more choke points along the path from bill to law, and empowers more groups to stop the action, than just about any other in the world.

So start with the fact that McConnell’s party holds a majority in the House, and no legislation can be enacted without the support of the House. It used to be fairly common in U.S. politics for one party to hold the presidency and control both houses of Congress. Now it is relatively rare (although Obama and the Democrats had that situation in 2009-10).

If a party holds just one of those three towers of power, it’s fairly easy for that party — if they choose that strategy — to see to it that nothing much happens.

There are many democracies around the world. Some of them have two houses of the legislature, like ours. In some of those, one of the houses is relatively weak (the House of Lords in Britain and the Senate in Canada leap to mind).

Choke points

But, if you want to create the maximum number of choke points, you should have two houses and require every bill to have majority support in each house.

And, in our system, even legislation that has the support of majorities of both houses plus the White House cannot become law if 41 of the 100 senators use the filibuster to block it (unless it is one of the relatively few bills that are allowed to circumvent the filibuster through the hilariously misnamed loophole called “reconciliation”).

The U.S. filibuster tradition, which deserves a whole separate story of its own, is unique. University of Minnesota political scientist David Samuels, who studies comparative democratic systems around the world, says he doesn’t know of anything much like it.

Then — as the Supreme Court case on the Obamacare law reminded us — even a bill that has run the gantlet of passage by both houses, overcoming or circumventing (in this case it was some of both) a filibuster in the Senate and dodging the potential for a veto by the president, can still be defeated by the least democratic branch, the Supreme Court.

Yes, I know. The Supreme Court, by a one-vote margin, did not strike down the law, although it did substantially change the law in a way that the Congressional Budget Office projects will result in about three million Americans being without health insurance who would probably have been covered if the Supreme Court had let the law stand in its entirety.

The experts on comparative democratic systems around the world who have been advising me on this series generally agree that the U.S. system grants more power for the courts to overrule the elected branches — and that the U.S. Supreme Court does so more often — than anywhere else.

Few things, if any, are more widely and secularly worshipped by Americans than our Constitution, which is the symbol, nay the apotheosis, of our system of government, which our speechifiers routinely declare to be the greatest such system ever developed by humans.

And yet, if you look around the world where many democratic systems of government now exist, ours erects more barriers to the enactment of a law than any other.

Yes, the gridlock that is bothering you is the immediate result of some fairly recent and important changes in how our political parties play the game. For most of recent history, the parties have been broad, overlapping coalitions. In the days when there were liberal Republicans and conservative Democrats, it made sense that there would be bipartisan coalitions for and against many things.

Now the two parties are ideologically further apart, more ideologically coherent, more disciplined, more willing to vote as a bloc, and perhaps they now strike the balance in a different place between what’s best for the country and what’s best for their party’s chances in the next election.

But they are still playing the game within the rules.

And the rules are established in (or near, or at least under) the Constitution. If we want to understand the source of what’s bothering us, we have to be willing to trace the bother to its source. In many cases, that source lies within the Constitution or, in some cases, to aspects of the system that most Americans probably think are clearly rooted in the Constitution

Well, this little screed — Or do I mean tone poem? You tell me — is the introductory installment in an ongoing series that will bravely seek to explore the connection between the news and the olds, between what’s bothering us now and the system in which the botherances are, at least in many cases, rooted.

Comments (33)

  1. Submitted by Thomas Swift on 10/01/2012 - 09:24 am.

    Not that making socialism “look bad”

    is necessarily a bad thing, but providing obsticles to his wholesale takeover of our nation’s health care system is *exactly and precisely* the sort of use our founders intended our system of checks and balances be put to.

    We’ve seen, time after time, when an issue is of obvious value to the overwhelming majority of Americans, legislation vitrually flies out of Washington. “Gridlock” has gotten a bad rap. In day to day circumstances, (in the absence of national crisis), in my opinion, it is in fact, a very healthy status quo for government to exist in.

    • Submitted by Paul Brandon on 10/01/2012 - 02:18 pm.

      I agree!

      At least to the extent that a system of checks and balances was definitely a planned part of our constitutional republic. The Founders were afraid of a runaway government, and clearly preferred inaction to precipitate action.
      Whether we have gone beyond their original plan with things like ‘filibusteros’ (pirates in the original Spanish) is another question.

  2. Submitted by Peder DeFor on 10/01/2012 - 09:38 am.

    Public Pressure

    The most effective way of bypassing gridlock is firm public pressure. The biggest reason that Obamacare was bottled up was because the public was against it. GOP senators could stand on principle and hold it up – and know that their voters would view them favorably because of it. The same thing wasn’t true on the Dem side where votes for Obamacare cost seats.
    This is true across the board. The Patriot Act (which I’d kill in a minute) passed quickly because of wide public support. It has been reauthorized again and again because that support continues. If the public were to be convinced that it’s a bad deal, support would erode and the votes would go away.
    The reason we have so much gridlock is because we have an electorate that is deeply divided on many issues. I’m fine with waiting until some things are more truly decided, even if that means confusion and delay. I’d rather not have one party be able to ram things through because they got 51% of the vote.

  3. Submitted by Paul Udstrand on 10/01/2012 - 10:11 am.

    Sure. Play the blame game.

    I’d rather blame Mr. Black and his “liberal” media.

  4. Submitted by Neal Rovick on 10/01/2012 - 10:16 am.

    The difference between the time when the rule were written and now is the speed of communication, actions, news, consequences.

    The least hobbled activities are military which has no small part of the recent debacles of the decades in which military action was substituted for policy.

  5. Submitted by Rachel Kahler on 10/01/2012 - 10:37 am.

    “Tone Poem”

    I have to say that this is the most meandering and unsatisfying post that I’ve read from Mr. Black. What’s your point?

    If I go by the title of this piece for the point, the premise is tenuous, at best. While it’s true that the Constitution isn’t always incredibly clear, the recent gridlock is the making of political foolishness of still-living politicians, not the failings of long-dead founders.

    The founders weren’t superheroes–they couldn’t foresee beyond the immediate future. Besides not being able to predict how American culture would change, the founders couldn’t have predicted such widespread apathy. In their day, politics was THE topic for well-educated and landed white men of society. It didn’t matter that the rest of society was uneducated–they couldn’t vote. And, although it was clear that the founders expected a broadening of franchise, they also expected an equally broadened access to education. They wrongly presumed that, with education and opportunity, people naturally tended toward serious consideration of politics and good government. Alas, while more people have direct access to the federal machinery, the general population hasn’t bothered to take responsibility with their education, particularly in good government. Rather, the general population has resorted to letting their politicians tell them what to think.

    This mess is the direct result of Americans’ reliance on the political “Easy Button.” We have let money determine who sits in Washington, not our votes. That’s easy enough, Americans vote at a dismally low rate, while those who gain the most from corrupt politicians have the money to buy them. That is not the fault of the Constitution.

    • Submitted by Francis Ferrell on 10/01/2012 - 08:01 pm.

      The Voice of Reason

      After reading all the comments to Eric Black article your comments are closer to the main problem not stated; ignorance of the Constitution. We truly live in the age of the “Easy Button” and unenlightened mass political views of ersatz Constitutionalists.

      The writers of the Constitution wrote a document that not only covered their present predicaments but one that would stand the test of time. It is a blueprint of governance that was malleable, but not easily changeable, that could be standard for posterity and rule.

      To Rachel K.;
      The Constitution is a blueprint for checks and balances to our system. Over 225 years have gone by and the document holds basically true to its intended intent. Changes[amendments], yes; but with long discourse and procedural ratifications. Constitutional amendments are the final statement or checks-&-balances on hard to define issues. Amendments generally fill an unsaid gap in the original documents. The “Bill of Rights” amendments support this premise of filling in shortfalls.

      Now comes 2012. Every Tom, Dick, and Harry; or, Jane, Sue, or Michelle who scream that anything not to their liking is “unconstitutional” or is caused by opposing political “socialistic” viewpoints that go beyond what the “old” Constitution states are showing their inane ignorances of the document they profess to represent. The same holds true for the masses who skipped studying their social studies, civics, or political science classes concerning the Constitution. [Funny, how newly naturalized US citizens know more about the Constitution, after passing a simple knowledge test, than the very native-born citizens who espouse knowing it!]

      Rachel, there are some minor points we could discuss but en total I feel the same way you do. The upcoming general election is going to be a difficult one for one and all. However, trying to do candidate research has been near impossible because of the ersatz nebulous political diatribes and the inane ignorances of the candidates who try to profess Constitutional viewpoints or statutory familiarities.

      What’s even crazier are the viewpoints of politicians supporting, in Minnesota’s case; issues of conscience/lifestyle or “legal necessity”; amendments to the MN state constitution where statutory enactments are already in the law books! Doesn’t anyone realize, regardless of the issues, the constitutional and legal ramifications to these ill-crafted MN amendments? Or, the legal minefields that will result if tweaking or modifications to the standing statutes are needed in the future? In other words, the MN Legislature, having duly elected, in the name of being “Constitutional”, decided to let the electorate decide on legal procedural enactments that they were too lazy to do. “C.Y.A. or C.Y.B.” [cover your political behind] seems to be the legislative course of elective duty under the guise of being Constitutional!

      The same holds true for the US Congress, CYB seems to rule the governing day with special interests adding to the legislative ambiguities and ignorance. Again, under the guise of being Constitutional. The Constitution, I feel, was never intended to be a “living” document. It is a blueprint, guide, for governance for its readers to go by.

      The three branches of government; the Executive, the Judicial, and the Legislative; each have their parameters in which to govern. In this “Easy Button” age of alleged knowing constitutional [systematic?] procedures, the Constitutional defined parameters are getting blurry. [ IE–recent criticisms of the US Supreme Court decisions that are being called statutory enactments by the courts.] Gridlock in any governmental process results when ignorances and radical extremism prevails.

      Thus, Rachel, unless I am out in the cosmos, what you stated and how some of us feel and/or agree with you, our voices of reason seem out of place in this “Easy Button” society. Is this what the writers of the Constitution intended it to be? A disenfranchisement of the citizenry?

  6. Submitted by Ray Schoch on 10/01/2012 - 10:42 am.

    So far

    …I vote for “tone poem” rather than “screed.” I expect the series to be interesting reading, and it should generate quite a bit of commentary, as well. Many of the regulars in the comment boxes are interested in both specific policies and action on the one hand, and broader philosophical questions of governance on the other, hence Mr. Swift’s and Mr. DeFor’s initial reactions.

    I’d toss aside Mr. Swift’s casual condemnation of anything he doesn’t like as “socialism,” but beyond that, I think he’s correct that, when the public really wants something done, it is often (though not always) done fairly expeditiously, even by a Congress that makes “do nothing” look like activity.

    Mr. DeFor’s comment offers some insight, I think, into what Mr. Swift is talking about. With a deeply divided public, it shouldn’t be as much of a surprise as it seems to be that getting something done in Washington (and in a good many state capitals, as well) seems inordinately difficult. Part of that may well be due to the effects of political advertising (not just in campaign season, but overall), but perhaps part of it is also largely due to genuinely conflicted feelings on the part of the public. Immigration, taxes, foreign policy, and others on the national scale, and housing, property taxes, schools and other issues on a state and regional level, typically elicit genuine ambivalence on the part of a lot of people.

    Not many rational people argue that, in the governmental sense, there’s actually a “free lunch” in the form of a tax-free society, but how much governmental income is necessary and how it’s to be spent is an argument as old as government itself among those willing to think about such things instead of simply riding their rhetoric into ideological battle.

    Jim Kunstler ( argues – persuasively, I think – that we’ve built an unsustainable society, but there are plenty of others who’d take something fairly close to an opposite view, and unless the public at large has somehow been educated about the choices being made, and those that need to be made in the near future, it’s pretty easy for us as a society to have political, economic and social expectations that aren’t going to be met. Like the members of any other society, we’re not very happy when our expectations turn out to be illusory, and especially so when there’s little understanding of both how and why that’s the case. I doubt that the Constitution is the be-all and end-all root cause of every problem we’re facing, but I’m inclined to agree that there are structural issues in the society that make governing the nation more challenging in 2012 than it was in 1850, and the changes that have taken place since the Constitution was written might be more effectively dealt with if the general public were more familiar with the document.

    • Submitted by Paul Brandon on 10/01/2012 - 02:22 pm.


      Part of the problem is that with an equally divided electorate on an issue such as health care, politicians on BOTH sides tend to claim that they have majority support.

  7. Submitted by Mike Downing on 10/01/2012 - 11:00 am.

    It’s the U.S. Senate Dummy!

    It’s the U.S. Senate that is dysfunctional. The U.S. Senate has a Constitutional obligation to pass a budget butt has not done so in over 3 years. The U.S. House has passed two budgets under Republican. l leadership since they took over the House Majority. The U.S. House also passed 27 jobs & the economy Bills that are wallowing in the U.S. Senate under Reid. Harry Reid and the Democratic controlled Senate is our problem.

    • Submitted by Neal Rovick on 10/01/2012 - 11:47 am.

      If the roles were reversed and the House was a hotbed of socialistic liberalism and the Senate was the preserve of sane Republicans, would you still be complaining about the Senate if they didn’t want to pass through a very “liberal” budget?

      • Submitted by Mike Downing on 10/01/2012 - 12:37 pm.

        If the roles were reversed new SUBMITTED BY NEAL ROVICK

        Of course I would criticize the House for not passing a budget. In fact, I and may others did so in 2009 & 2010. That is the reason for the results from the 2010 election.

      • Submitted by Hiram Foster on 10/02/2012 - 07:15 am.


        The problem is and has always been that the senate can’t act at all. I believe winning elections means the winner governs, and the other side sits down. In the senate, losers prevail,

        • Submitted by Paul Brandon on 10/02/2012 - 09:06 am.

          That’s why the Senate exists

          One intended function of the Constitution is to protect the rights of minority.
          Remember that our nation was formed by European minority groups.

  8. Submitted by Hiram Foster on 10/01/2012 - 11:13 am.


    A basic goal of the founders was to create a federal government that would not be able to eliminate slavery. That’s the point of the checks and balances system. The founders were actually successful in that; slavery had to be eliminated by the extra constitutional means of the Civil War. The sad thing is that while the particular rationale of the constitutional system is gone, {although the founders’ dynamic continued long after the legal elimination of slavery, though various forms of de facto and de jure discrimination echoes of which continue to this day in among other things, the proposed voter ID amendment} we are still left with the intentionally, partially dysfunctional system they put in place.

    American government doesn’t work very well because the people who designed it, and put it into place didn’t think it should, and they were good at their jobs.

    • Submitted by Paul Brandon on 10/01/2012 - 02:29 pm.

      The issue is broader than slavery

      It’s North vs. South.
      The Southern States even then were aware that they were on the short end of the stick in terms of both population and industrial strength. Since many of the founders were Virginians, they loaded the system against Northern domination by setting up a two house system where the Senate provided a check on the House. In addition the Electoral College as originally structured (the states each had two votes, the method of choosing the electors was up to the individual states) functioned as a check on the more populous North.

      • Submitted by Hiram Foster on 10/01/2012 - 07:46 pm.


        The South was always full of rationalizations for their differences with the north. After all, everyone kine of knew slavery was evil so they engaged in campaigns of euphemism and misdirection. But in the end, it always came down to slavery. I don’t know that the Southern legislators fully understood America’s financial system. That was Hamilton’s domain. They knew they didn’t like banks, because farmers tend to land rich but cash poor. But other agricultural states didn’t secede from the union. Minnesota for one, never left. The south wanted to balance the power of the north in Congress to protect slavery. Expanionst policy pre civil war revolved around that equation. Southern states had to be admitted in equal proportion to northern states.

  9. Submitted by Virginia Martin on 10/01/2012 - 11:19 am.

    familiarizing oneself with the document

    and with the real issues in our society. The public was for the Patriot Act. But most people don’t know its contents. And many people claim to be against the ACA, but if you press them, they admit they like most of its features. They don’t understand the act in its overall consequences, and because it is complicated, they fall for some republican screeds (and they are screeds) that claim the “wholesale takeover of our health care system” by our administration. They should familiarize themselves about the law–but then, that would take away their false talking points.
    It’s time we took a look at our Constitution, but that won’t happen in today’s climate of reverence for a document few people are familiar with. And it was written with plenty of room for new interpretations. Otherwise, we would not need that apparently illegal court system to tell us what is constitutional and what is not.
    I don’t think you can expect a document written 225 years ago to cover all instances of political life today. Our founders among other things did not anticipate the revolutionary technological changes in our society. When they passed a law saying that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” they could have NO IDEA that a couple hundred years late, various unstable people could run around with AK47s with which to gun down politicians they don’t like or bosses who fired them or university professors and students with whom they have a grudge.
    Too bad we can’t bring them back and ask them what they think now, what WERE their intentions back in 1787. But from my reading, they did not hold the Constitution sacred and inviolable. Wouldn’t they have said so if they wanted that?

    • Submitted by Paul Brandon on 10/01/2012 - 05:41 pm.

      And there’s question

      whether the Second Amendment applies to individuals at all, since the wording is “the right of the people” — a collective noun — not the right of persons or of individuals.
      Note that in Article 1 Section 2 the wording is “2. No person shall be a Representative…”, so when the Founders wished to talk about individual rights as opposed to collective rights (maintaining a well regulated militia) they made it clear. I count 48 more instances of the word “person” in the Constitution. When the Constitution refers to individual rights it is stated clearly.

      And that was the judicial consensus for over two centuries.

  10. Anonymous Submitted by Anonymous on 10/01/2012 - 12:14 pm.

    The book Winner Take All Politics cites all the “choke points” where legislation can be strangled as they key to our gridlock and the extreme disparities in wealth we are now experiencing. That and the way Senators can now just threaten a filibuster without ever having to carry one out. I’d much prefer a parliamentary system. George W. Bush would never have become Prime Minister in such a system.

  11. Submitted by Dennis Tester on 10/01/2012 - 12:49 pm.

    You’ll notice that

    the only people who believe that the Consitution is a living document are those who don’t like what it says.

    The story goes that as Benjamin Franklin emerged from Independence Hall at the close of the constitutional convention, a woman asked him, “Well Doctor, what have we got, a republic or a monarchy?” Mr. Franklin replied, “A republic, madam – if you can keep it.”

    We have gridlock not because the Republicans “want Obama to look bad,” we have gridlock because they are trying to save this republic from total destruction.

    We’ll find out on election day if we’ve managed to keep it.

    • Submitted by Neal Rovick on 10/01/2012 - 02:09 pm.

      Living Document?

      ….the only people who believe that the Consitution is a living document are those who don’t like what it says….

      And some current Republican Constitutional amendment pushes are:

      Repeal 17th amendment
      Repeal 14th amendment
      Prohibit government ownership of stock
      Parental rights amendment
      Term limits
      Flag desecration
      Balanced budget
      Right to life
      Gay marriage ban
      Supermajority required for tax increases
      Cap on federal spending as percent of GDP
      Limit presidential right to negotiate treaties

      And so on.

      So who doesn’t like what it says???

  12. Submitted by Rosalind Kohls on 10/01/2012 - 02:09 pm.

    The Founders deliberately created a system of checks and balances, and a type of gridlock, to keep the federal government small and less obtrusive in the lives of US citizens. And no, the Founders did not consider the Constitution sacred and inviolable. They also created a way to amend it. The problem with the people who want a “living” constitution is that they want to change the plain meaning of the constitution without going through the amendment process. The amendment process is lengthy,and the voters need to be persuaded to go along with it. It’s easier for the “living” constitution advocates to have the US Supreme Court go around the voters’ wishes and just dictate how things will be.

  13. Submitted by Paul Landskroener on 10/01/2012 - 02:18 pm.

    Constitutional duty to have a budget?

    Mr Downing: There is no “constitutional” obligation to pass a “budget”. Any such obligation is one that Congress imposes on itself, and is if recent vintage.

    The conversations about constitutional reform would start from a much higher plane if those participating have a basic knowledge of what the constitution says.

  14. Submitted by Ian C on 10/01/2012 - 02:24 pm.

    The grass is always greener..

    …on the parliamentary side. I’ll be honest that my own first inclination is to believe that things would function much more smoothly under a parliamentary democracy, and it’s true that our current ideologically-aligned parties would probably be much more effective in that system. But that whole deal comes with an entirely different set of equally mind-numbing frustrations. Ask Canadians how they feel about the fact that more than 60% of them vote for left-wing parties, and yet they end up with a Conservative majority government. It’d be rather like if we had the 1984 election outcome, but Walter Mondale ended up as President. And it happens time after time. We all seem to pine for a multi-party system here in the U.S., but be careful what you wish for.

  15. Submitted by Ray Schoch on 10/01/2012 - 02:59 pm.


    – again – to Neal Rovick, for that interesting list of potential changes sponsored by those at the right-hand end of the political spectrum. As is often the case, Mr. Tester is hoist by his own petard.

    I also thought Ms. Kahler and Ms. Martin made good points. The Constitution is unequivocally a product of its Enlightenment times, just as all of us writing about it now are products of ours. As Ms. Kahler said, politics was basically the main point of conversation between and among wealthy white males when the document was written, and I think she’s quite correct that, while they anticipated an expansion of the franchise, they also anticipated that widespread education would tend its recipients toward serious consideration of political matters. Instead, people get degrees in marketing, and cocktail party conversations dwell on consumer goods and sports results. We can’t help but be influenced, sometimes profoundly, by the social and political attitudes of the period in which we live and the people who’ve influenced us.

    That said, far too many people in recent decades have adopted an ideology, and once adopted, cling to it as if it were the last lifeboat on the Titanic. Letting money and “morality” substitute for thought defeats the purpose of both the founders and meaningful political discussion. As Ms. Kahler suggests, it is not the fault of the Constitution that the proportion of American citizens who even bother to vote is so dismal. Those who aren’t paying attention have basically abdicated their duty as citizens, and that abdication, so far as I can tell, doesn’t hew to a particular political party line, or even a particular age group.

    I agree with Ms. Martin that even the extraordinary group of men that gathered for the constitutional convention could not have foreseen the kinds of changes, technological and otherwise, that we’d be dealing with more than two centuries later. No matter which of the multiple sides of the 2nd Amendment you might find yourself on, there’s no denying that it was written in an era of flintlock, single-shot weapons. While they’re still around as interesting curios and museum pieces, and I’ve even built a couple myself for use at the range, the muzzle-loader is orders of magnitude removed from modern assault weapons. Times and circumstances change.

  16. Submitted by Kent Fralish on 10/02/2012 - 04:19 am.

    Constitution at Fault?

    Just ask, does the government today have the constitutional authority to do what it is doing?
    Far too many look to the government for entitlements which is putting us in an all against all gridlock.
    Doom ensues.

  17. Submitted by Bruce Marshall on 10/02/2012 - 07:11 am.

    It’s Worse Than You Think

    Black refers to the recent analysis of the present ‘gridlock’ by Mann and Ornstein. These authors, in their recent book It’s Worse Than You Think, don’t blame the Constitution, but blame the mismatch between (I) our present governing system (Constitution and practices such as filibuster, senatorial holds on appointments and bills, other precedents, and the like) and (II) one party, the Republican Party, having become an extremist parliamentary-style party.

    Our present governing system (and it’s not all in the Constitution) makes governing possible only if the separated powers (House, Senate, President, judiciary) work together. Parliamentary-style parties don’t work together; one rules at a time, the other is in permanent campaign mode working for the day when it rules. Extremists of every kind, time and place are not socialized to the society’s norms; they’re all about disruption; they have their own facts.

    Combine I and II and you get our kind of gridlock/dysfunction.

    It’ll be interesting to see if Black’s analysis improves on Mann and Ornstein’s.

  18. Submitted by Neal Rovick on 10/02/2012 - 07:46 am.

    Doom ensues??

    ….to save this republic from total destruction…(Mr. Tester)

    What fevered apocalyptic visions !!!

    What really endangers democracy in America is the belief that certain people’s ideas and interpretations are the only permissible ideas and interpretations.

    There’s a name for that type of government and it certainly isn’t a democracy (or a republic).

    I’m sorry that the loss of your candidate’s campaign will cause you pain, but the fact will be that a majority of voters will have rejected that vision of where America should go.

    And then what will people like Mr. Tester do?

    That is exactly when you lose or hold on to democracy.

    • Submitted by Kent Fralish on 10/02/2012 - 10:59 am.


      We’ll lose this democracy over debt spent on things the government should not be involved in.

      • Submitted by Neal Rovick on 10/02/2012 - 02:26 pm.

        Exactly how do you envision the loss of democracy because of debt coming about? There are a lot of financially tattered democracies out there so what will happen with the US?

        China sending the repo man?

        Either it gets paid or it doesn’t.

        If we pay, we can borrow cheaply in the future. If we don’t pay, borrowing in the future gets more expensive. There is no repo man. A lot of people will experience financial damage, but “too big to fail” works even better for governments than for banks.

        But let me know on how you see it working out.

        Remember that more democracies were dismantled through demagoguery than debt.

  19. Submitted by Paul Udstrand on 10/02/2012 - 08:44 am.

    Constitution as scritpure

    One huge problem we have is the fact that Republicans want to treat the constitution like it’s religious scripture. If you look at the debate they offer (doom ensues) you see it looks more like an argument about dogma than any kind of legal argument about interpretation. The problem with treating the constitution like it’s scripture of course is that it creates a false dichotomy between those who claim to be following the constitution and those who aren’t; rather than seeking a resolution within the constitutional framework. This is why you see these constant declarations from Republicans regarding what the constitution says rather than attempts to reconcile different interpretations.

    The scripture model does a lot of other weird things to our public discourse. For instance you this weird deification of the framers, claims that they’re judgement needs to supersede ours as it they were infallible deities. The reflexive derision of “living document” approaches to the constitution is another scripturally driven response. Scriptural interpretations cannot be changed, they must rigid. Religions have fought wars for hundreds of years over minor differences in interpretation, they don’t reconcile they divide and split off. Notice the recent Republican suggestions that some states would be better off going their own way (seceding) rather than reconciling with the Federal Government. This is a direct result of treating the constitution like dogma instead of a framework for resolution and reconciliation.

    Getting back to Mr. Black’s observation I think it clear that the framers of the constitution did not consider themselves to be infallible, therefore it makes no sense for us to deify them and attribute infallibility. The clearly created a framework with the built in capacity for amendment. They did not assume the country and it’s challenges would never change, on the contrary they assumed such change was inevitable and deliberately gave future generations the ability reshape the constitution accordingly. Furthermore, most of the framers were enlightened and educated men of their time. This men believed in the capacity of human intellect for discovery and problem solving. Unlike contemporary conservatives they trusted human intelligence, and used it to create a liberal democracy. The idea that they would endorse the suspension of reason and logic in favor of a dogmatic approach to governance is ridiculous.

    • Submitted by Kent Fralish on 10/02/2012 - 01:43 pm.

      No Arguement

      The constitution is clearly meant for change as the people see fit. The means of doing so is by amendment. A whole lot of amendments never made it to the vote, but the government is doing it anyway.

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