Ronald Reagan made enormous contributions to his country during his presidency – and appointing Antonin Scalia to the Supreme Court ranks very high among them.
I say that not simply because of the votes Justice Scalia has cast over the last quarter-century, but because of his enormous intellectual contributions to our understanding of law, legal philosophy, and the Constitution. I was reminded of this watching Justice Scalia during a recent hearing of the Senate Judiciary Committee, which also featured Justice Stephen Breyer.
Scalia made several insightful points, including this one: the key to the distinctiveness of America is not the Bill of Rights, which “every banana republic in the world” has, but our structure of government – which involves the separation of powers, something that is quite rare in the world.
“The Europeans look at this system and they say ‘Well, it passes one house, it doesn’t pass the other house, sometimes the other house is in the control of a different party. It passes both, and then this president, who has a veto power, vetoes it” — and they look at this and they say, ‘Ach, it is gridlock,’” according to Scalia. “And I hear Americans saying this nowadays, and there’s a lot of it going around. They talk about a dysfunctional government because there’s disagreement — and the Framers would have said, ‘Yes! That’s exactly the way we set it up. We wanted this to be power contradicting power because the main ill that beset us, as Hamilton said in The Federalist, when he talked about a separate Senate, he said, ‘Yes, it seems inconvenient, but inasmuch as the main ill that besets us is an excess of legislation, it won’t be so bad.’ This is 1787; he didn’t know what an excess of legislation was.”
Scalia went on to say this:
Unless Americans can appreciate that and learn to love the separation of powers, which means learning to love the gridlock which the Framers believed would be the main protection of minorities, the main protection. If a bill is about to pass that really comes down hard on some minority [and] they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system. So Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason, so the legislation that does get out is good legislation.
This is an ancient truth that’s worth recalling in every season – but perhaps now more than most. We’ve seen a rise in the number of influential liberals who embrace troubling reforms based on their frustration with gridlock. For example, Peter Orszag, who was President Obama’s OMB director, wrote an article in The New Republic in which he says, “radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.” And in case that wasn’t clear enough, Orszag concludes his article this way: “As we are seeing, certain aspects of representative government can end up posing serious problems. And so, we might be a healthier democracy if we were a slightly less democratic one.”
Readers of Tom Friedman of the New York Times know he has a special fondness for the People’s Republic of China’s political system, which he considers to be far more efficient than ours (Friedman’s lamentation is a familiar one: America remains a “deeply politically polarized country”). CNN’s Fareed Zakaria, in turn, argues that a parliamentary system is more efficient because “there is no contest for national legitimacy and power.” The kind of “squabbling” and “holding the country hostage” that is happening in this nation, Zakaria argues, doesn’t occur in Great Britain. Other nations are acting quickly and with foresight; America, on the other hand, is “paralyzed.”
On the matter of “gridlock” and “paralysis,” this needs to be said: during the first two years of the Obama administration the president was more successful in pushing through his agenda — the stimulus bill, the Patient Protection and Affordable Care Act, Dodd-Frank legislation regulating Wall Street, credit card price controls, an extension of jobless benefits, cash for clunkers, and more — than arguably any president since Lyndon Johnson (see here for more). The 2010 midterm election was the public’s way of slamming the brakes on the president’s agenda.
But there’s a deeper point worth exploring, which is the lack of faith we see among many modern liberals when it comes to our system of checks and balances. So it’s worth restating the theoretical foundation for American self-government, of which the best exponent was James Madison, whose study and mastery of ancient and modern governments was unparalleled. (It’s been said that the “literary cargo” of books on history, politics, and commerce sent by Jefferson provided Madison with information about nearly every experiment in republican or federal government of which there was any historical record. He was, by most accounts, the best prepared person at the Constitutional Convention.) In the words of Professor Ralph Ketcham, “As he saw repeatedly how concentration of power inclined toward tyranny or the triumph of selfish interest, his devotion to checks and balances and the doctrine of separation of powers increased.”
Yet many of today’s progressives seem wholly unconcerned about these matters. They are, in fact, relentless advocates for the concentration of power. They tend to view the separation of powers as an inconvenience and an obstacle. And when their agenda
is slowed down or stopped due to our system of checks and balances, they are ready to jettison our core constitutional principles (and in the case of North Carolina Governor Bev Purdue, suspend elections).
This is shortsighted, rash, and imprudent. As between Messrs. Orszag, Friedman, and Zakaria on the one hand and Madison, his fellow framers, and Scalia on the other, the choice is (to borrow from the words found in the preamble of the Declaration) self-evident.