It sometimes seems as though our country is hopelessly divided between left and right, and that the normal channels of constitutional government are failing us. If we look more closely, however, we will find instead that it is our political leaders who are failing in their duty to follow the Constitution — because we, the voters, no longer hold them properly accountable when they fail to do so.

Consider the issues dominating headlines this summer. President Barack Obama has made his top priorities the implementation of a nuclear arms control agreement with Iran and the restriction of carbon dioxide emissions by power plants. Both of these policies are opposed by nearly all Republicans and by some Democrats; neither could be enacted into law today as a standalone measure. Republicans, meanwhile, want to dismantle Obamacare and defund Planned Parenthood; neither of these is about to become law any time soon, either.

Although we rarely discuss them and politicians have been reluctant to make them a priority, there are major national problems that should be at the top of the agenda in Congress, because creative and effective legislators actually could build sufficient political support to pass laws to address them.

When President Obama last month commuted the sentences of 46 nonviolent drug offenders, he was cheered not only by his own core supporters, who feel that our drug laws unfairly burden minorities, but also by many libertarians, who broadly oppose what they see as the overcriminalization of American life. Moreover, when the president came out in favor of legislation to reduce the penalties attached to nonviolent drug offenses, the idea was received warmly by many in both parties.

Tax reform and increasing infrastructure spending are two other obvious areas where compromises could be struck and new laws passed. If the Iran negotiators were able to find ways to design the deal so that both sides could claim victory, surely clever budget negotiators do the same for these pressing issues.

But instead of looking for such areas of common agreement, our politicians seem determined to focus on the issues that most deeply divide us. Why?

The president always has a structural incentive to make the Congress look ineffectual. When the public can be made impatient for action and the Congress to look obstructive, the public will allow the president greater leeway in the use of executive power. And, as one would expect, executive power has grown consistently, largely at the expense of Congress, since at least the time of Franklin Roosevelt.

Democratic presidents have a particularly strong incentive to sideline the Congress, because they usually can count on the permanent staff of the administrative agencies to support their policies. How many people choose to work for the Environmental Protection Agency because they want less environmental regulation? Probably not many. That same logic suggests that congressional Democrats, too, have an interest in gridlock, so long as they can count on the administrative agencies generally to keep supporting their agenda.

Republicans in Congress are therefore in a very difficult position. When they pick fights they cannot win, they perversely end up helping President Obama make the argument to the American people that the Congress is broken and that they should therefore just trust him.

But they focus on the issues they do, because their voters demand it and because they have failed to make the case for adopting a wiser and more truly constitutional course. When congressional Republicans fail to advance their controversial agenda, their voters become frustrated and disillusioned — and they start turning to demagogues, such as Donald Trump.

Maybe Trump’s supporters think that he really will make the Mexican government pay to build a wall on our southern border, or maybe they just enjoy his open contempt for Republicans in Congress. Either way, his rise to political prominence is not a good sign.

Republican politicians, who should understand that the Constitution was deliberately designed to make it difficult to pass new laws in the absence of a national consensus, should be trying to build enthusiasm for the issues on which they actually can achieve results and try to tamp down expectations for legislative actions on issues where action is now impossible.

Republican voters — and Democrats, too, who want to preserve constitutional government from being corrupted by populist demagogues — need to understand the real and important restraints the Constitution imposes and should support those who follow the Constitution and succeed in making real, incremental improvements in policy rather than those who promise much and make a big noise but accomplish nothing.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: