The pride of the American Constitution is “checks and balances.” It is designed to assure that neither executive nor Congress is able to rule without the consent of the other. In Mr. Trump’s presidency, this balance of power is challenged.
However, checks and balances is not the Constitution’s only job. The country needs to be governed and the Constitution should provide for good governance. The duty of government, said George Washington, the first president, in his first inaugural address, is “the discernment and pursuit of the public good.”
It has become standard among observers of American politics that Washington is “dysfunctional.” The Constitution, then, is challenged not only in its ability to check power but also to provide governance.
The Constitution may well stand the test of Mr. Trump’s attempted power grab. That is not assured but is at least possible.
Whether it can be rebooted to do the job of providing good governance is more doubtful. The Washington system has been grinding into gridlock for a long time, and this problem is made more severe by the new chaotic presidency.
There is no single cause of Washington’s dysfunction. But one strong factor is the escalating power of money in political processes. The transgression of private money into democratic politics causes elected representatives to become beholden to the givers of money. American politics have become mega-expensive – actually have deliberately been made mega-expensive for the purpose of making money the ultimate political tool. Candidates and representatives cannot (mostly) hope to win or retain office without raising large amounts of money from sponsors. Sponsors are increasingly organised in PACs, super-PACs and otherwise. In this structure of sponsorship sits the power to decide who will be elected – those the money is willing to sponsor – and what policies they can promote and support when elected – those that are acceptable to the money. The result is Congressional gridlock. President Obama explained the problem with clarity in his final State of the Union Address: elected representatives are “trapped” by “black money” and not free to make policies for the public good.
The two main criteria of good governance are effectiveness and fairness. In a democracy in which money trumps votes, governance suffers on both criteria. There will not be necessary governance if it collides with organised monied interests. Such governance as there is, will be biased in favour of organised monied interests. You could not have a better description of Washington’s dysfunction.
While Congress is the institution to look to for the checking of presidential usurpation of power, the Supreme Court is the institution that needs shaking up to control the power of money. The Court has fallen under the spell of a bizarre theory according to which the giving of money to political cause is a form of expression of opinion and therefore protected by the freedom of speech clause in the Constitution’s 1st Amendment. It has accordingly chipped away at such limitations on the political use of private money as have existed in the American system. The Court the purpose of which is to protect American democracy is, by convoluted logic, presiding over its erosion.
How could the Supreme Court be checked? None other than Congress could do it. Is a dysfunctional and demoralised Congress, “trapped” by the workings of “black money,” going to take on the Supreme Court? Not likely.