We have heard complaints about the “do nothing congress” for the past several presidential administrations. Indeed, we frequently see that congressional approval numbers flirt with historically low positive rates. This has occurred whether the majority of congress has belonged to democrats or republicans.
The American people have often decried the inability of congress to stop the bickering and work together to get things done. At the same time, we hear of politicians campaigning on the platitude that they will be willing to reach across the aisle. Still little improvement seems to come out each new session of congress.
So where does the dissonance come from and, how might it be corrected? We must first understand that the Constitutional Convention created two houses of congress, in part, to make it difficult, but not impossible to quickly pass legislation.
The problem as I see it, is that we have unwavering loyalty to political party at the expense of all other priorities. I am not speaking so much about commitment to political ideology, or philosophical worldview, as I am of an administrative apparatus of coercion.
Our first president, George Washington, warned us of this in his Farewell Address. Washington’s sentiments epitomized the perspective of the Founders in general.
“Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.
This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.”
So while party loyalty forms out of the lesser angels of the human condition, it was viewed as a destructive force by the Founders. What is missing today is zeal toward the specific branches of government, which assures a robust operation of separation of powers.
Congress today, seems to have devolved into the weakest branch of government, because members have not vigorously exercised their checks over the judicial and executive branches. Courts have been allowed to legislate from the bench through activism that ignores the jurisprudence of original intent. They have permitted judges to act as philosopher-kings. Likewise, congress has permitted itself to be outflanked by increasing numbers of executive orders which circumvent its constitutional role.
Again, Washington comments on this state of affairs.
“It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed…”
In the Constitution, congress has a remedy to limit the jurisdiction of courts. “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Article III, Section 2, Clause 2.
Congress has the ability to impeach judges as well, but when is the last time you heard of that happening?
Congress has checks on presidential authority as well. The chief problem is that congress can not unite as a body, zealous of their particular powers and duties, but fragments itself according to party affiliation. If a judge legislates from the bench to accomplish what has failed legislatively, the portion of congress that has affinity with the judge’s decision will approve of the actions, rather than dissent with the usurpation. It is likewise with overreach by the executive branch.
As long as this practice continues, people will feel betrayed by their representatives and disapproval will be high.