Constitution Check: Is the Constitution breaking down under divided government?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects. Today‘s topic: divided government.

The constitutional claim:

“Voters may have chosen divided government, but they sure didn’t vote for dysfunctional government.”

- President Obama on August 2, just before he signed into law the compromise bill to raise the ceiling on the national debt to avert a financial crisis.

“Conservatives…don’t have the Senate, they don’t have the White House. And under our constitutional system, you cannot govern from one house alone….Trying to turn a blocking minority into a governing authority is…extra-constitutional.”

- Washington Post syndicated columnist Charles Krauthammer, “The debt plan the Republicans need to pass,” July 28.

The constitutional response:

If James Madison were alive today, he might be heard to say: “I told you so!”  Madison, the Founding Father who had the most to do with the Constitution’s design, was deeply concerned about what he called “factions” and he put forth very strong arguments in one of the most famous of the Federalist Papers, No. 10, to blunt the political power of groups “actuated by some common impulse of passion, or of interest…”

James Madison (flickr image by cliff1066)

His answers to the problem were to encourage a competition among factions, and to dilute their strength by dividing power between the state and federal governments and among the three federal branches.  Although political passions were very strong in Madison’s day (the bitter feuds between Thomas Jefferson and Alexander Hamilton, for example), there were, initially at least, no organized political parties to help concentrate and deepen the passions of faction.

If Madison were to have observed the role that partisan factions played in Washington this summer, he might well have been sympathetic to the concerns of those observers who fret that his constitutional remedies might not be working so well when power is shared by two rival – and gridlock-prone — factions.

Is divided government actually to blame?  Perhaps it is.  Since 1900, there have been 56 two-year sessions of Congress, and in 23 of those the two major political parties shared control of the White House and Congress.  What is most telling about that, though, is that 16 of those periods of divided government have come just since 1970 – the point in U.S. history when political analysts began noticing what they called “congressional stagnation.”   That phrase refers to the high rate at which members of the House get reelected – a rate that, since then, has seldom been below 90 percent.

The advantage of incumbency has grown with sophisticated techniques of congressional redistricting, to ensure not only that incumbents have favorably drawn districts, but that those districts have a predictable partisan majority – the party of the incumbent, of course.  In such districts, the most-committed partisans are necessary to keep it “safe.”  Sarcastically, it is said, the politicians now choose the voters.

This is what has come to be called “partisan gerrymandering.”  Twice – in 1986 and 2004 – the Supreme Court has refused to find any constitutional defect in partisan gerrymandering, hinting that the Justices simply could not find a standard for judging when partisanship does constitutional harm.   In that sense, the Supreme Court may be at least partly to blame for the rise of an even more divided House, in a partisan sense.

Incumbency, of course, does not always save a Representative’s seat.  There can be a sudden partisan shift, as there was with the remarkable success of the “tea party” movement in the Republican Party in 2010, and that can bring a whole new faction into the mix, one perhaps less willing to compromise.   And the new incumbents no doubt will be tempted – in the new round of redistricting now under way after the 2010 Census – to assure that their own seats are safe.  The cycle, it appears, is indeed continuing.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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