An article was recently published in The New Republic detailing how American policymaking has changed over the centuries and how the Constitution has become a stumbling block to good government. The article can be found here. It is written by Dr. Timothy Shenk, a postdoctoral fellow at Washington University in St. Louis and a Carnegie Fellow at New America. Not only is the article impeccably written, but much of it is correct where it describes the history of the federal government. The piece however, misses the point on a great many issues, and although I am not as eloquent a writer as Dr. Shenk, nor am I an expert in federal policymaking, I will attempt to rebut some of his points and provide an answer to the growing discord within our political arena.
To start, Dr. Shenk argues from the standpoint that policy is inherently good, and that “getting stuff done” is what the government should be doing, but both of the words “policy” and “stuff” are ill defined within the piece. If the premise is true, but policy isn’t defined, does all policy from both ends of the political spectrum qualify as good? Is the repeal of Obamacare, which is policy in itself, equally as good as Obamacare? Of course, such an idea makes no sense, and therefore I am left with the conclusion that Dr. Shenk is speaking of progressive policy when describing what is good. This opinion is further bolstered by the positive language by which he speaks of Woodrow Wilson, Franklin Roosevelt, and Barak Obama, three presidents who are lauded by progressives but reviled by Conservatives and Libertarians. The position that all progressive policy is good needs no further take down. It is as partisan a viewpoint as there ever was. Any individual reading the piece with an ounce of objectivity can discredit it from this simple fact.
Secondly, Dr. Shenk does not give enough credit to the founding fathers or the process by which the Constitution came about. One might read his piece, and very easily see Madison and Hamilton as simpletons who wrote a document with little care for the future and little regard for the past. This is however, a gross misunderstanding of those men and the process they went through to create our federal government.
A look at Federalist Papers 18 and 19 reveal James Madison’s evaluation of the ancient Greeks, the Aegean league, and more recently, the governments of Germany and Poland to make his argument for the Constitution. Alexander Hamilton points to the feudal systems of Europe to assuage concerns of the antifederalists. These men were wise, dedicated, and well-studied in history. They spent 5 months debating every word of the Constitution and then spent two years arguing for its ratification. Does Dr. Shenk look at history when deciding what policy is “good?” Based on the above point, the answer is probably no, but any objective citizen who reviews the impact of policy must inherently look at history to deem it successful or unsuccessful. History is therefore, the only way to accurately predict what government policy will work or not work in the future.
If these things are true, then we can assume that the founding fathers DID envision many of the problems we face today when crafting the Constitution. Would Dr. Shenk consider the 1st Amendment a stumbling block to good policy or a wise, prospective addition to a country’s founding charter? What of the presidency? He mentions repeatedly the power of the president, but he fails to note that this office was created within the framework of the Constitution. This argument applies to the 17th Amendment which he adds as a victory for progressives. This amendment came about through a constitutionally delineated ratification process.
Thirdly, Dr. Shenk supposes that a society without a Constitution would work more efficiently, and better for public prosperity. He writes, “The handcuffs Madison thought would shackle the state turned out to be made of paper, and savvy policymakers snapped out of them on their way to getting stuff done. Which proved to be for the best.” In this manner, government policy is again based on a nebulous concept- “good.” The problem with good at this point is that good is different for different people. Dr. Shenk speaks of Obamacare as good policy, but what of the Americans who’s premiums have risen since its’ enactment? Is the law good for them? By whose authority is it deemed so? Dr. Shenk’s response might be that Obamacare helped far more people than it hurt, but such a response relies on his opinion of good and bad, and ignores those who disagree. What is left if there is no Constitution, is a government run by the emotions and world views of the individuals in charge- a system that lacks all sense of boundaries, but exists solely at the leisure of those in power. History has abundant examples of the failure of this system of unrestrained government. I won’t list them here, but rather I’ll ask, can Dr. Shenk provide a single example of a government, past or present, who, lacking all restraint, does not devolve into tyranny?
Lastly, and most importantly, Dr. Shenk stops short of providing any workable solution to the problems we face. Having maligned the Constitution, he cannot therefore reach back to it for the answer. As such, he manifests the same problem that representatives face today. The fault is not in the document, but rather the very people who have failed to recognize its authority, just as Dr. Shenk does.
As noted above, he points to the 17th Amendment as a success for democracy, but this same amendment has turned the Senate into a partisan screaming match, creating a legislative body that is just as partisan as the House of Representatives. The direct election of senators has given us men like Roy Moore, Al Franken, and Jon Conyers.
The desire for the government to be constantly doing something has given us over 4 trillion dollars of debt.
The increasing power of the executive branch has given us demigods like Donald Trump and Barak Obama.
The judiciary repeatedly ignores the Constitution in pursuit of what feels right- see Dred Scott vs Sanford, Plessy vs Ferguson, and Korematsu vs United States.
Are these things ok? Are they just the dying throws of our representative republic or are they the evidence of what happens when the Constitution is forgotten? I suggest that they are the latter.
The answer to what ails our country, is indeed a simple one, a recognition of what HAS worked, federalism. James Madison notes that there will always be faction. Dr. Shenk’s universal pursuit of good cannot exist as long as men and women have opinions. As a result, we have a system of checks and balances, where the government that is closest to the people makes the most decisions. American federalism gives such faction boundaries and buffers the most important decisions against emotional judgement. Federalism allows people to be different, to be neighbors, to help one another, and to enact policy that works!
Federalism allows us to protect rights, defend the marginalized, and celebrate differences rather than attempt to fit every square peg into every round hole.
What is needed today is not an abandoning of the Constitution, but a renewed love for its wisdom and a people who are committed to protecting it.
The US Constitution is as relevant today as it was 228 years ago, but only if we protect it. As Ben Franklin said, we’ve got “A republic, if you can keep it.”