More on this book
Community
Kindle Notes & Highlights
Only FDR’s reelection in 1940 clearly violated the norm—a violation that triggered the passage of the Twenty-Second Amendment.
The United States has also had its share of constitutional hardball. As we have noted, after the Fourteenth and Fifteenth Amendments formally established universal male suffrage, Democratic-controlled legislatures in the South came up with new means of denying African Americans the right to vote. Most of the new poll taxes and literacy tests were deemed to pass constitutional muster, but they were clearly designed to counter its spirit.
There was no argument, it was said, that could not be settled over a bottle of Chilean cabernet.
Some polarization is healthy—even necessary—for democracy. And indeed, the historical experience of democracies in Western Europe shows us that norms can be sustained even where parties are separated by considerable ideological differences. But when societies grow so deeply divided that parties become wedded to incompatible worldviews, and especially when their members are so socially segregated that they rarely interact, stable partisan rivalries eventually give way to perceptions of mutual threat.
Had Roosevelt passed his judicial act, a key norm—that presidents should not undermine another coequal branch—would have been demolished. But the norm held. Roosevelt’s court-packing plan faced greater opposition than any other initiative undertaken during his presidency. It was opposed not only by Republicans but by the press, prominent lawyers and judges, and a surprisingly large number of fellow Democrats. Within months, the proposal was dead—killed by a Congress dominated by Roosevelt’s own party.
In 1798, the Federalists passed the Sedition Act, which, though purportedly criminalizing false statements against the government, was so vague that it virtually criminalized criticism of the government.
It took several decades for this hard-edged quest for permanent victory to subside. The demands of everyday politics and the rise of a new generation of career politicians helped lower the stakes of competition. The post-Revolutionary generation grew accustomed to the idea that one sometimes wins and sometimes loses in politics—and that rivals need not be enemies.
According to Richard Hofstadter, Van Buren typified the spirit of the amiable county courthouse lawyer translated to politics, the lawyer who may enjoy over a period of many years a series of animated courtroom duels with an antagonist, but who sustains outside the courtroom the mutual respect, often the genial friendship, of the co-professional.
The Civil War broke America’s democracy.
With enduring partisan animosity came constitutional hardball. In 1866, the Republican Congress reduced the size of the Supreme Court from ten to seven to prevent President Andrew Johnson, a Democrat whom Republicans viewed as subverting Reconstruction, from making any appointments, and a year later, it passed the Tenure of Office Act, which prohibited Johnson from removing Lincoln’s cabinet members without Senate approval. Viewing the law as a violation of his constitutional authority, Johnson ignored it—a “high misdemeanor” for which he was impeached in 1868. Gradually, though, as the Civil
...more
It is difficult to overstate the tragic significance of these events.
Paradoxically, then, the norms that would later serve as a foundation for American democracy emerged out of a profoundly undemocratic arrangement: racial exclusion and the consolidation of single-party rule in the South.
In his two-volume masterpiece, The American Commonwealth (1888), British scholar James Bryce wrote that it was not the U.S. Constitution itself that made the American political system work but rather what he called “usages”: our unwritten rules.
Three are available to the president: executive orders, the presidential pardon, and court packing. Another three lie with the Congress: the filibuster, the Senate’s power of advice and consent, and impeachment. Whether these prerogatives are formally stipulated in the Constitution or merely permitted under the Constitution, their weaponization could easily result in deadlock, dysfunction, and even democratic breakdown.
As a body whose original purpose was to protect minorities from the power of majorities (which, the founders believed, would be represented by the House), the Senate was designed, from its inception, to allow deliberation.
Two of these folkways are closely associated with forbearance: courtesy and reciprocity. Courtesy meant, first and foremost, avoiding personal or embarrassing attacks on fellow senators.
Norms of reciprocity entailed restraint in the use of one’s power so as not to overly antagonize other senators and endanger future cooperation.
In theory, the Senate could block presidents from appointing any of their preferred cabinet members or justices—an act that, though nominally constitutional, would hobble the government. This has not happened, in part, because of an established Senate norm of deferring to presidents to fill their cabinets and open Supreme Court seats.
In the 150-year span between 1866 and 2016, the Senate never once prevented the president from filling a Supreme Court seat.
Since removal requires a two-thirds vote in the Senate, this means that impeachment should have at least some bipartisan support.
One we have already explored: Roosevelt’s unprecedented concentration of executive power during the Great Depression and World War II. Beyond the court-packing attempt, Roosevelt’s reliance on unilateral action posed a serious challenge to traditional checks and balances.
The court-packing scheme was rejected by both parties, and although Roosevelt destroyed the unwritten rule limiting presidents to two terms in office, support for the old norm was so strong that in 1947, less than two years after his death, a bipartisan coalition in Congress passed the Twenty-Second Amendment, which enshrined it in the Constitution.
McCarthyism posed the second significant challenge to America’s institutions, threatening norms of mutual toleration in the early 1950s.
The advent of the Cold War had created a frenzy over national security, and the Republican Party, which had been out of national power for nearly twenty years, was searching desperately for a new electoral appeal.
McCarthy ranted against communism and the presence of “traitors” within, and then stumbled onto a line that instantly became iconic: “I have here in my hand a list of 205 names that were made known to the Secretary of State and who nevertheless are still working and shaping the policy of the State Department.”
With Eisenhower installed in the White House, Republican leaders found McCarthy’s tactics less useful. And McCarthy’s attacks on the Eisenhower administration and, especially, on the U.S. Army, left him disgraced. The turning point came in the live-televised 1954 Army–McCarthy hearings in which McCarthy was humbled by Army chief counsel Joseph Welch, who responded to McCarthy’s baseless accusations by saying, “Have you no sense of decency, sir? At long last, have you left no sense of decency?”
Although groups such as the extremist John Birch Society “kept the McCarthyist spirit alive,” they operated at the Republican Party’s fringes. But norms of mutual toleration remained intact within the dominant factions of both parties until late in the twentieth century.
He viewed public opponents and the press as enemies, and he and his staff justified illicit activities with the claim that their domestic opponents—often depicted as anarchists and communists—posed a threat to the nation or the constitutional order.
The administration also deployed the Internal Revenue Service as a political weapon, auditing such key opponents as National Democratic Committee Chair Larry O’Brien.
Although Nixon held out hope that he could muster up the 34 Republican votes needed to avoid a Senate conviction, Senate Republicans sent Barry Goldwater to inform him of the inevitability of impeachment.
The norms sustaining our political system rested, to a considerable degree, on racial exclusion. The stability of the period between the end of Reconstruction and the 1980s was rooted in an original sin: the Compromise of 1877 and its aftermath, which permitted the de-democratization of the South and the consolidation of Jim Crow. Racial exclusion contributed directly to the partisan civility and cooperation that came to characterize twentieth-century American politics. The “solid South” emerged as a powerful conservative force within the Democratic Party, simultaneously vetoing civil rights
...more
But for the first time in American history, the U.S. Senate refused to even consider an elected president’s nominee for the Supreme Court.
When Gingrich arrived in Washington in 1979, his vision of politics as warfare was at odds with that of the Republican leadership.
In the early 1990s, Gingrich and his team distributed memos to Republican candidates instructing them to use certain negative words to describe Democrats, including pathetic, sick, bizarre, betray, antiflag, antifamily, and traitors.
Gingrich didn’t create this polarization, but he was one of the first Republicans to exploit the shift in popular sentiment.
House Republicans refused to compromise, for example, in budget negotiations, leading to a five-day government shutdown in 1995 and a twenty-one-day shutdown in 1996.
The Republican House members also moved ahead with impeachment without bipartisan support, which meant that President Clinton would almost certainly not be convicted by the Senate (he was acquitted there in February 1999).
He demonstrated this, in part, through the K Street Project, which packed lobbying firms with Republican operatives and instituted a pay-to-play system that rewarded lobbyists with legislation based on their support for GOP officeholders. Republican congressman Chris Shays described DeLay’s philosophy in blunt terms: “If it wasn’t illegal, do it.”
President Bush governed hard to the right, abandoning all pretense of bipartisanship on the counsel of his political advisor Karl Rove, who had concluded that the electorate was so polarized that Republicans could win by mobilizing their own base rather than seeking independent voters.
Harry Reid and other Senate leaders used Senate rules to slow down or block Republican legislation and broke with precedent by routinely filibustering Bush proposals they opposed. Senate Democrats also began to stray from the norm of forbearance in the area of advice and consent, obstructing an unprecedented number of President Bush’s judicial nominees, either by rejecting them outright or by allowing them to languish by not holding hearings.
Conservative columnist Charles Krauthammer wrote that “one of the great traditions, customs, and unwritten rules of the Senate is that you do not filibuster judicial nominees.”
However, there exists a long-standing and widely shared norm that redistricting should occur once a decade, immediately after publication of the census. This is with good reason: Because people move continuously, redistricting that occurs later in a decade will be based on less accurate population figures.
To his great credit, President Bush did not question the patriotism of his Democratic rivals, even when anti-Muslim hysteria in the aftermath of the September 11 attacks created an opportunity to do so.
Earlier, in Phoenix, Arizona, McCain had delivered a gracious concession speech in which he described Obama as a good man who loved his country, and wished him “Godspeed.”
In the spring of 2011, as he pondered a 2012 presidential bid, Trump told the Today show that he had “doubts” about whether President Obama was a natural-born U.S. citizen. “I have people who actually have been studying it,” Trump claimed, “and they cannot believe what they are finding.”
Such attacks have a long and dishonorable pedigree in American history. Henry Ford, Father Coughlin, and the John Birch Society all adopted similar language.
The Democrats responded with norm breaking of their own.
President Obama also responded with norm breaking—in the form of unilateral executive actions.
The president’s actions were not out of constitutional bounds, but by acting unilaterally to achieve goals that had been blocked by Congress, President Obama violated the norm of forbearance.
Raising the debt limit was a long-standing bipartisan practice; between 1960 and 2011 it had been done 78 times, 49 under Republican presidents and 29 under Democrats.
