We Are in Our Articles of Confederation Moment

Congress has no ability to check the executive branch in any meaningful way. (Photo: Mark Wilson/Getty Images)

We Are in Our Articles of Confederation Moment

Our national legislature no longer functions.

We are in our Articles of Confederation moment. By this, I mean we are in a phase in our national life where we need to recognize that our institutions are not serving our interest. This is not because of President Trump. The situation predates his administration, though he has learned to take advantage of institutional dysfunction for factional advantage.

Most fundamentally, our national legislature no longer functions. Budget agreements notwithstanding, Congress cannot pass an actual budget with clear direction and decisions about trade-offs across the 12 conventional areas of appropriation by deadline. It cannot resolve disputes around pressing national issues such as immigration, climate change and health care. Significant expenditures on core functions such as defense are folded into contingency lines. And Congress has no ability to check the executive branch in any meaningful way.

The founding generation sought, in the words of Alexander Hamilton, to balance republican safety and energetic government. Republican safety meant securing basic rights of self-governance, including both personal liberties and freedoms to participate in collective decision-making. Energetic government meant a government that works. The government under the Articles of Confederation was insufficiently energetic. Its collapse would also have put an end to the republican project and therefore to republican safety.

In the design of the Constitution, the founding generation saw the legislative branch as the main threat to both republican safety and energetic government. In various ways, the founders sought to guard against its encroachment on the executive. Their work succeeded beyond their wildest imaginings. The power of the executive branch is what has grown vigorously in the succeeding centuries.

Since the nation's founding, Congress has overridden only 111 of 2,576 vetoes. Similarly, executive orders have become a prominent part of governance, replacing legislation. Congress was intended to give voice to the will of the people, filtering and synthesizing the national interest to set the national legislative agenda. Instead, Congress has become the servant of the partisan presidents, who get to set the agenda rather than executing the people's agenda as communicated by the legislature.

To achieve self-government in a large society requires representation -- the idea that the people as a whole forms its will through representatives who listen to their constituents, digest, contend and collaborate, achieve a synthesized agenda-setting vision and report back to their constituencies to repeat the process.

In a representative democracy, the legislature is the only institution equipped to present a synthesized expression of "the will of the people." This is because the minority view is also present in the legislature.

The presidency was never designed to express the will of the people, and it cannot do so. It typically expresses the will of the electoral majority. For this reason, the presidency ought to be subservient to the legislature so that its work of executing the laws is constrained by the will of the people as a whole -- minorities as well as majorities. Government by executive order guts the heart of the representative system.

If we care to preserve democracy -- to achieve a balance of republican safety and energy -- we need to restore our national legislature to well-functioning.


Although this is an Articles of Confederation moment, we do not need a Constitutional Convention. Two critical redesigns can be achieved by state or federal legislation.

First, increase the size of the House of Representatives by 50. The representative branch needs to be a place where majority and minority viewpoints are folded into a working synthesis. Majorities must be blocked from trampling minorities; minorities cannot have a veto on all actions flowing from the majority point of view. As in "Goldilocks," the balance must be just right.

Our institutions have always given extra weight to rural minorities, but the tipping of our population to urban centers has exacerbated that weighting. Expanding the House would rebalance our representative body. More populous states currently have more constituents per representatives than less populous states, so we'd use the 50 seats to rebalance the numbers. Wyoming probably wouldn't get a new seat, for instance, but many more populous states would (and while we're at it, the District should get one, too). This change would simultaneously rebalance the electoral college.

Second, introduce ranked-choice voting in presidential, House and Senate elections. This system would force politicians to campaign and spend money so as to be not only some voters' first choice but also other voters' second or third choices, forcing candidates to cease demonizing other candidates whose supporters they hope to win over as a second choice. Ranked-choice voting, as recently adopted in Maine, can be done state by state and would yield a less polarized, more functional Congress.

Our world is very different from the one the founding generation lived in. We can and should adopt the founders' principles--the need to balance republican safety and energy. But we will need to think for ourselves, in our new circumstances, about how to design our institutions to achieve that balance. Let the thinking begin.

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