Could the Founding Fathers solve today's political gridlock?

Laws and LegislationCrime, Law and JusticePoliticsU.S. CongressCourts and the JudiciaryAmerican Independence Corporation

When I appear at book festivals or give readings, lots of folks want to know what the Founding Fathers would do or say about our currently dysfunctional Congress. There seems to be an unspoken but widely shared assumption that the most prominent members of the founding generation represent the gold standard in political leadership, and our contemporary politicians are the epitome of debased currency. As one commentator put it, "Once you compare then and now, you've got to believe that Darwin got it exactly backward."

My standard response to all such comments is to warn the audience that making historical comparisons in such a straightforward then-and-now fashion is misguided, and that bringing the founders into the present is like trying to plant cut flowers. Moreover, canonizing and capitalizing the Founding Fathers is more hagiography than history.

For example, once you understand how the Constitution was created, all rosy myths evaporate. Fifty-five white males gathered in Philadelphia, imposed complete censorship over the deliberations, regarded slavery as the ghost at the banquet (it could not be openly debated), and then had the audacity to send the document to the states under the rhetorical mantle "We, the people." If our modern values of inclusiveness, transparency and diversity were imposed on the founders, the Constitution would never have happened.

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Lately, however, I have been having some second thoughts, prompted by recent arguments linking the gridlock in Congress with the purportedly outdated and anachronistic character of the Constitution itself. Those arguments lead to the conclusion that we need a second Constitutional Convention to rectify the problem.

In truth, most of the prominent founders, including Jefferson, Madison and Adams, would probably not object to such a proposal — indeed would be surprised that their 18th century creation had lasted as long as it has. Jefferson thought that the Constitution should be redone every generation, meaning every 20 years or so.

But, seriously, a second Constitutional Convention? It could never succeed, chiefly because the secrecy, elitism and the rest of 1787 reality could never be duplicated in our time. (And ought not be.) Besides — and here I feel an obligation to defend the legacy of the founders — the current gridlock in Congress is not a function of anything in the language of the Constitution.

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Gerrymandering and primary election politicking are surely part of the problem. So too is the plutocratic character of our political culture in what has become, in effect, a second Gilded Age. But the core problem in getting legislation through the House and the Senate are procedural rules adopted by both bodies over the last century.

In the Senate, the culprit is the filibuster. Its history is long and labyrinthian, but, in the form it has assumed over the last 30 years or so, a supermajority of 60 votes is required for passage of any and all legislation. (The "nuclear option" weakened the filibuster when applied to some presidential appointments, but not to legislation.)

In the House, the source of gridlock is the unwritten code that gives the speaker the authority to block a vote on any bill that does not have the majority support of his or her party.

Again, neither of these procedural principles is anywhere to be found in the original text or subsequent amendments to the Constitution. So we cannot pin our gridlock problems on the founders. To the contrary, they specified that supermajorities would only be required for extraordinary kinds of legislation, primarily foreign treaties and constitutional amendments. All ordinary bills, they clearly assumed, would be approved or rejected by a majority vote.

But let's push it to the next level. Neither the Senate nor the House, under the administrative pretense of controlling its own procedural rules, has the authority to alter the meaning of the Constitution. The only way to do that is by a constitutional amendment.

Long-standing members of the Senate will cry foul at any argument that questions their discretionary authority. They have exercised that authority for so long, and their convictions about the special status of the Senate are so embedded in their hearts and minds, that they sincerely believe the founders designated them as Delphic oracles.

Not so. The great and not-so-great men in Philadelphia indeed wanted the Senate to serve as a check on the democratic excesses of the House. But they believed that goal would be achieved by giving senators six-year terms, making them less vulnerable to swoonish swings in popular opinion. Nothing in the Constitution gives the Senate the authority to redefine the Constitution as it sees fit.

The current Congress is dysfunctional, then, largely because it has adopted procedures that systematically deny the rights of the majority in ways that violate the original intentions of the founders. The proper place to adjudicate this issue is neither the House nor the Senate but the Supreme Court, which is the ultimate arbiter of what the Constitution says and what the founders intended.

If by some miracle we could bring Madison back to testify to the high court in just such a proceeding, the "Father of the Constitution" would apprise the justices that the current modus operandi in Congress is not what he and his colleagues had in mind. In short, he would declare it unconstitutional.

And that's not hagiography, it's history.

Joseph J. Ellis is the author of "Founding Brothers: The Revolutionary Generation" and "Revolutionary Summer: The Birth of American Independence," among other books.

Copyright © 2014, Los Angeles Times
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