James Madison believed in a strong, central government, but not a unilateral one. He also believed in states' rights, and above all in individual rights. In other words, he wanted his constitutional framework to have its cake and eat it too. Madison and his framers' posse then showed just how to do it.
They resolved the contradictions in two essential ways. The central government would be divided within itself if not, on occasion, against itself. So would governments all the way down to the most local levels. Federal and state governments compete. So do states and counties, counties and cities. It's not a bad thing, if diluting power is the goal. At the top, Congress, the presidency and the judiciary were created equal in the Constitution's eyes, with Congress clearly more equal than the others. The Constitution goes on and on about congressional powers in Article I, compared to which Article II about executive power is a footnote -- appropriately enough in a system neurotically inspired by suspicion of autocratic power. The Bush junta upended that balance with its weird re-interpretation of Article II.
Madison also believed in divided institutions outside of government. What we call "special interests," he called "factions." The more factions competing all over the land, the less chance any one or group of factions could dominate government. Madison and the framers didn't have a contingency plan for when government and special interests would collude wholesale against the national interest because they assumed the constitutional framework inherently prevented that.
What Congress would let a president pick and choose what laws he would execute and what laws he wouldn't, what industries he'd favor and what constituencies he'd ignore? What judiciary would let a president become the interpreter of the Constitution, brazenly defying it and every robe behind it? Actually, this Congress and this judiciary have done exactly that. Congress let Bush get away with interpreting legislation as mere suggestions. The judiciary let Bush get away with such inventions as the "unitary executive" theory -- the theory, that the president's authority (and interpretation of that authority!) overrules all others. It's a perfectly convenient, closed system that brooks no challenge. It's despotism surrounded by a flower garden of laws.
And when certain factions become conglomerates -- insurance, oil and defense industries, Big Media, the religious right -- Madison's idea of factions as a check on government looks more quaint than the Geneva Conventions beneath Alberto Gonzales' boots. The more so when a junta within government uses its power to scheme on behalf of some of those factions, rather than to represent and regulate them, as the framers intended. So we get the novel form of divided government we have today: Congress, the judiciary, the White House press office -- going through the motions of democracy. And the one the Bush junta has created speaking the language of democracy while freely enacting the methods of dictatorship and patronage.
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How depressing. And yet, not quite the end. The framers' anti-King George system can be manipulated. It can't be discarded yet. On all the major issues of the day that have been in arrested development in Bush's hands, states have innovated, improved and challenged each other to do what the federal government won't anymore -- health care, global warming, stem-cell research, campaign finance, immigration. The remarkable thing about the latest Supreme Court decision on greenhouse-gas emissions wasn't that it acknowledged global warming. That's been as settled a question as evolution. Rather, the court laid bare the enormous disconnection between the Bush White House and the rest of the country's urgencies, if not the world's. The worrisome thing about that decision is that it was 5-4, revealing also how, even when Madison's ideals prevail, they're doing so by the skin of their teeth.
Nor is it reassuring that all major hopes for progress on the kind of issues listed above, which only the federal government can pull off in earnest, are now resting on states' shoulders. The framers wanted the states to be experimental battlegrounds. They didn't mean them to be petri dishes of insurgence. But that's what voter initiatives about stem-cell research or legislative initiatives on universal health care are amounting to -- votes of no-confidence in a federal government that prides itself on obstacles it used to demolish.
It's great that the states are taking the initiative. In the long run it can be madness, because the more states must do what the federal government won't, the more the cohesive nature of the national system Madison and the framers designed -- competitive but progressive, strong and unified -- frays. The damage a presidency like Bush's is inflicting isn't temporary or policy-specific. It's institutional. It cuts at the heart of the nation's original designs. Like global warming, its effects will be felt long after measures to counter the damage have been embraced -- if they are.
© 2007 The Daytona Beach News Journal