What Would Madison Do?

Coming soon: a lawsuit filed by House Speaker John Boehner challenging President Obama’s usurpation of legislative authority. According to the Speaker’s legal theory (summarized in a memo that closely follows a recent George Will column), the courts can resolve disputes between the legislative and executive branches when (a.) no private party has standing to sue; (b.) there is no legislative remedy; (c.) one branch of the Congress has voted to authorized such a lawsuit.

Predictably, President Obama has called it a “stunt” and Nancy Pelosi “subterfuge.” But, as the distinguished former federal prosecutor Andy McCarthy pointed out recently, even if Speaker Boehner’s theory is correct, it is not clear that it applies to the case at hand. It is even less clear that this approach will do anything to stop or even slow down the longstanding Progressive effort to create a hegemonic presidency–amounting, as it does, to asking the kid next door to fight the neighborhood bully for you.

The American founders expected the Congress to be the bully of the federal government. Publius (pen name of James Madison, Alexander Hamilton, and John Jay), for example, argues throughout The Federalist that the legislative branch will be the most powerful and, therefore, most likely to usurp the powers of its coordinate branches. This argument rests in large part on the assumption that the popular character of the Congress, especially the directly-elected House of Representatives, will fortify legislators, already well-armed in their constitutional powers, with the confidence to act boldly on the people’s behalf. However, the democratization of the presidency very early in our history began a reorienting of our institutions toward executive domination.

Between 1820 and 1824 and again between 1824 and 1828, the number of popular votes cast for the presidency tripled, so that while President James Monroe won all-but-unanimous reelection in 1820 with 87,000 popular votes (over 80% of those cast), John Quincy Adams’s 500,000 votes eight years later earned him only a 43% share of the popular vote. Most important, however, was the interpretation Adams’s opponent, Andrew Jackson, put on his two presidential election victories, claiming that he alone among federal officeholders was the “direct representative of the American people” and that it was, therefore, incumbent upon Congress to enact his campaign platform, whatever the platform or promises individuals members may have (successfully) run upon. Thus, Jackson contended that his 1832 presidential reelection victory should trump any further attempt by legislators (who had likewise been elected) to recharter the Second Bank of the United States.

Jackson’s congressional opponents naturally disputed his claim, but, importantly, his fellow Democrats in Congress did not. In a preview of Nancy Pelosi’s stalwart defense of President Obama’s usurpations, Jacksonian partisan identity trumped institutional identity and the Congress ceded authority—in this case, leadership in its core law-making responsibility–to the president.

Developments in the nearly two hundred years since have only added to the confidence of the executive branch in expanding its powers. The rise of mass media (especially television), an American people less attentive to thoughtful and vigorous public debate, the increasing frequency of war (and its “moral equivalents”), and the growing belief in management culture, among other factors, have put the people’s wind behind the president’s sail, especially during times of heightened public optimism at or near the beginning of a new presidency.

Meanwhile popular approval of Congress has topped 40% in only seven (1998-2004) of the forty years in which Gallup has collected data and currently hovers in the high single digits.

Why?

On nearly every front, executives possess an institutional advantage over their congressional counterparts. While presidential policy aspirations are considered part of a leader’s positive governing agenda, congressional policymaking is often misconstrued as hyper-partisan even when legislative proposals offer only minor dissent from executive ones. Moreover, while executive ambition tends to inspire, congressional ambition is often understood in terms of an individual’s (usually someone else’s representative) selfish attempt to hold onto office or climb the political ladder. In sum, executive activity is viewed as a high-minded means to achieving the public good whereas legislative activity is considered the stuff of imperfect compromise that only benefits private parties.

In this challenging environment, it is not surprising that Speaker Boehner would ask the judiciary to confront the executive bully. But if the political ground has shifted beneath the feet of the Congress, its imposing constitutional prerogatives remain: control over the public purse and the power of impeachment foremost among them. House Republicans, no less than red state Democrats, can only show they are serious about opposing executive overreach if they are willing to use the constitutional means appointed for it and best adapted to effect it.

James Madison argued in Federalist 51 that the balance of power within the federal system could not be maintained by a reliance on “external” factors, including the mere text of the Constitution or regular constitutional conventions. Rather, he reasoned,

The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

Ambitious presidents should be opposed by ambitious judges and legislators. Properly armed by a well-designed constitution, each should be willing and able to check the would-be usurpations of the others: the “interest of the man…connected with the constitutional rights of the place.”

Madison’s reasoning, of course, suggests that we ought not expect publicly-spirited behavior from officeholders when it runs contrary to their interest. This (in the form of electoral interest), we may suspect, explains Congress’s limited ambition in the present case. Madison, however, is not so much commenting on the character of politicians as describing human nature:

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Beyond (and, in part, beneath) the ideologies, parties, dislikes, and controversies that divide the American public are the common flaws that, ironically, unite us…in our selfishness. Humans too often seek to amass money, power, and distinction without measure–or regard for justice, despite our natural knowledge of its claims. Ignoring this fault is no solution, but, Madison argues, by accepting and even promoting human ambition within the constraints of right and justice, men can arrive at the best possible state of economic and political affairs.

A central part of the Progressive project, however, has been to de-emphasize, if not ignore altogether, the second half of Madison’s dilemma: the lack of angels in government offices–at least when Progressives hold those offices (especially the presidency). Meanwhile, Progressives see only demons in the private sector: those whose self-seeking behavior must be made publicly-spirited by active government intervention. There are in this sense no real men in the Progressive system.

Thus, when IRS Commissioner John Koskinen stated that he was sure that no laws were broken by his agency in its abusive scrutiny of conservative non-profits (even though he didn’t know the law and couldn’t review the “lost” evidence), he was merely parroting the trust ( “not a smidgen of corruption”) that Progressives have in themselves. And when Lois Lerner started sniffing around for grounds to audit Senator Grassley or prosecute 501(c)4 applicants, she was only following the other side of the Progressive instinct: there isn’t any scandal because there couldn’t be any scandal–except the scandal of doubting the Progressive taxing, spending, and regulatory scheme that gives agencies like the IRS their prodigious political power.

Progressives, in essence, have for a century acted upon the self-serving motto “In Progressives (especially Progressive Presidents) We Trust.” No matter how misguided or damaging the Progressive presidency at the time, a cultural, academic, and political elite awaits in the wings, like Shakespeare’s Antony, ready to mythologize the efforts of Progressive heroes who “when that the poor have cried,” like Caesar “hath wept.” Thus, the “death” of Caesar (i.e. the expiration of a Progressive administration) only strengthens Caesarism–a point too often missed by three generations of Republican establishment Brutuses, eager to win the next election, but lacking both the will and the imagination to truly contest the Progressive regime.

Such a contest would require men of the character of Publius–both the author(s) ofThe Federalist and his namesake, who, with three others, led the overthrow of the despotic Roman monarchy–men who understand human nature and the relationship between government and the governed. It would require the bold and apparently novel exercise of legitimate constitutional powers to challenge entrenched illegitimate ones, along with a candid presentation to the American people of the means by which and the degree to which government can truly “promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity.”

It would, in short, respond to the particular trials of the Obama presidency with a view toward the long-term overthrow of the hegemonic presidency. As Addison’s Cato saidto Caesar’s messenger:

“Bid him [Caesar] disband his legions, Restore the commonwealth to liberty, Submit his actions to the public censure, And stand the judgment of a Roman senate: Bid him do this, and Cato is his friend.”

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook. Their original article appeared on The Federalist.