Are we headed for civil war? A civil war settles profound social, cultural, and economic questions by force rather than through institutional process. For institutions to succeed in arbitrating and ameliorating conflict, they require two things: rules and trust. Rules try to be mathematical while trust is emotional. Institutions must render outcomes that both make sense rationally, and can be accepted emotionally – win or lose. Our institutions, our written Constitution in particular, are far too brittle to soothe the growing existential anxiety being experienced from the friction of social, cultural, and economic change. The functions of our Constitution alone will not cool this off. We are going to have to find other alternatives.
Two recent articles stand out and I’m going to refer to them as representative of the current political discourse I’ve been hearing. One is an essay from the Atlantic by David French titled, The Constitution Isn’t Working and a report in the New York Times about a survey of American’s opinions titled, As Faith Flags in U.S. Government, Many Voters Want to Upend the System. It was the lead from the latter that motivated me to write this post.
“A majority of American voters across nearly all demographics and ideologies believe their system of government does not work, with 58 percent of those interviewed for a New York Times/Siena College poll saying that the world’s oldest independent constitutional democracy needs major reforms or a complete overhaul” (emphasis mine).
In truth, our system is one inherited from English forms of political structure rooted at least as far back as the 13th century in Magna Carta. But the easy acceptance by Americans that we are “the oldest constitutional democracy” is symptomatic of the central problem in our version of a republic, the reification of the idea of democracy in the form of written document created in the late 18th century.
We have learned as an article of faith, that the United States, sui generis, established a great “experiment” in democracy through the American Revolution. The documents that emerged from those events have been freighted not just with the job of creating a set of rules for governing, but also of holding the more intangible even holy elements of the American creation myth.
Civil religion in the United States takes many forms, often performative, like standing for the national anthem or saying a pledge to the flag at the beginning of a meeting. While these performances and rituals seem immutable, they change over time, reflecting social and cultural changes and allowing greater or lesser influence. Those changes don’t require a vote with a two thirds majority. Burning the flag or kneeling at the national anthem are controversial, even divisive, but, over time, people generally establish norms that reflect shifting and changing values. Certain practices and conventions move in and out of fashion without a formal process.
French points out, correctly I think, that the legislative process is not “co-equal” with the other branches of government, a theoretical concept that is rooted in Charles Louis de Secondat, Baron Montesquieu’s De l’Esprit des Loix and passed to us through John Locke. But it is a theory, and then there is practice. French writes,
“The problem is simply this: Congress was intended to be the most potent branch of government. It is now the most dysfunctional. And it’s dysfunctional in part because the Founders did not properly predict the power of partisanship over institutional responsibility.”
I don’t think that the Founder’s failed to predict anything, but rather did the best they could to recapitulate what they understood of the unwritten English Constitution. But French rightly points out that in practice, the Congress passes laws, and when they reach an imbroglio and cannot make laws, our system bulges at the seams and puts more stress and expectation on the other branches of government. When the Congress can’t decide whether or how to regulate carbon emissions, the President issues directives which are challenged in the courts. Whatever one thinks of West Virginia v. EPA, Biden v. Texas, or Dobbs v. Jackson Women’s Health Organization, it’s impossible not to see this dynamic playing out in these cases.
But isn’t that the way our “experiment” is supposed to work? Absolutely. Power has migrated back and forth and through the three branches over time; just look at Plessy v. Ferguson and Brown v. Board of Education of Topeka. Over the better part of a century, as the culture and economy changed, so did the court and its rulings, shifting away from segregation and toward integration of schools. But for this to work, there had to be a sense that the losing side in each case would accept the outcome and seek to make changes that would result in a different outcome – eventually.
But we lack that kind of trust and patience. In the article about the survey, Americans express a wise doubt that deeper cultural divides can be solved by our Constitution. At the root of that mistrust, however, is a mistrust of each other. One person quoted in the article said,
““You don’t have to necessarily be a liberal Democrat to be a good person,” she said. “But what I had no idea until I was much older was how many people still believe in the Confederacy or, you know, just — if I saw a Confederate flag, I’d just assume that that person was some kind of mentally ill psycho.”
The stakes have gotten higher and higher; one can guess that a person displaying a Confederate flag does it specifically because it will illicit this exact response. And the feeling that the person doing it is not a “good person” begins to take hold. As I pointed out, conventions and practice and performance begin to be the places where people express their frustrations, but those performances increasingly become about good versus evil and which will win rather than arcane debates about policy. Government can’t solve problems of good and evil, a zero-sum formulation in which one side must prevail over the other.
When faced with what feels like a threat to personal freedom to own a gun or get an abortion, many people feel that the institution has been corrupted by the other side. When changing that requires a two thirds majority of the states, a practical impossibility, many people feel that force might be the only option. This begins with the idea in the survey results that “democracy needs major reforms or a complete overhaul” to purge it from the infection of the evil being done by the other side. Winning, rather than consensus, is the only option.
Is there a system of government that somehow combines the more performative nature of social and cultural expression with the mechanics of government? In other words, can rule based institutions be flexible enough to reflect cultural and social change without votes or court rulings? Is there a kind of government that has nuanced and unwritten rules that can bend without breaking while shifting real power between institutions? There is, and ironically it is the very system that our myth claims we broke from at our revolution, the English Constitution.
The Constitutional History of Modern Britain Since 1845 by Sir David Lindsay Keir is a wonderful book, so good that when I left it on a plane years ago, I immediately got online to order a replacement. It isn’t on any best seller lists, though. But, in a very British way, it walks through the subtle shifts in power that have yielded today’s government in the United Kingdom. One example of how this worked in history are worth noting.
In 1839, the functioning Prime Minister was Lord Melbourne who served under the young Queen Victoria. After suffering a serious of defeats in the House of Commons, Melbourne went to the Queen to call for his opposite the Duke of Wellington to form a new government. Wellington deferred to the leader of the Commons, Robert Peel. Peel said he’d only form a government if he could choose the ladies of the Queen’s bedchamber. This was unacceptable to the Queen who saw her ladies not as government functionaries (which in many ways they were) but as friends, so Melbourne soldiered on without a majority in the House of Commons having lost an election.
This little dust up was called the Bedchamber Crisis. And while some might chuckle at all the stiff collars and upper lips, it was what we’d call today a “Constitutional crisis.” By the middle of the 19th century power had moved not just away from the sovereign and toward Parliament but more specifically to the House of Commons, an elected body. At the time, elections and majorities in the Commons were not considered a mandate to run the government; the Queen could choose her own people to run the government. Imagine our own situation today with a President who can choose a cabinet but can’t pass legislation because of a divided congress.
Today, the Queen still wields significant power. In the United Kingdom, she alone can dissolve Parliament and call an election. When Boris Johnson faced his final collapse in confidence, there was consideration of going to the Queen to ask her to dissolve Parliament which would result in an election, something that would allow Johnson to appeal to the public to hang on rather than his own party. He could have asked. She could have refused. That would have created a “crisis.”
This shift over the last two centuries did not happen with a vote to change a written constitution by a two thirds majority. There was much foment in the streets that lead to changes. The Chartist movement, for example, which emerged around the same time as the Bedchamber Crisis, agitated for changes that led to allowing everyone to vote and for power to finally concentrate in the House of Commons. Who is the leader of Great Britain? Today everyone would say, “The Prime Minister,” but that role is simply a function in broader performative constitution that does not rely on a document, but convention.
Can we throw away our written Constitution and just wing it? Of course not. But we can look back to our own history and recognize that we didn’t invent democracy, we inherited a form of it. Understanding this inheritance is essential for us to gain the benefits of it. Revising our current form of government will require consensus and consensus requires trust in each other as people. We don’t have that now. As long as people are fighting not just over guns and abortion but where people shop and eat dinner it’s simply not possible to gain a two thirds majority to amend the Constitution or anything.
We have a choice. We can choose sides and fight each other until one side wins. History teaches us that winning usually comes at a high price including managing and pacifying the losers. This is a rational choice that, in our brittle system, will lead to physical conflicts and violence. People might feel that given the option of trying to compromise with people they feel are evil or bad is worse than simply trying to overcome them at any cost because they pose such a serious threat to the well-being of all.
The other option is to learn to live with people we don’t like, following the ancient principle of the Golden Rule, “Do unto others as you’d have them do unto you,” or “Love your neighbor as yourself,” and “Forgive our trespasses as we forgive those that trespass against us.” This is a much more difficult and unlikely path for people to take. However, taken together with a more modest and nuanced form of government that relies on performance rather than documents, perhaps we can find a way out. Or maybe our system won’t break after all, and it will come away somehow stronger from the stress. The choice is for each of us alone, but we will share the consequences.