Is the Shutdown the Founding Fathers’ Fault?

Commentaries on economics and technology.
Oct. 6 2013 7:15 AM

Is the Shutdown the Founding Fathers’ Fault?

After all, they gave us the separation of powers between Congress and the president.

George Washington
The shutdown? It's pretty much all the Founding Fathers' fault.

Photo by Andrew Kelly/Getty Images

Americans are fond of speaking in reverential tones about “the wisdom of the Founding Fathers”—that is, the men who wrote the Constitution. But the manner in which the House of Representatives has been able to bring the government—or, at least, its non-essential services—to a halt is making the Founding Fathers look rather foolish.

The fundamental cause of the fiscal crisis lies in the Founding Fathers’ belief in the doctrine of the separation of powers. That doctrine has always been philosophically controversial.

Thomas Hobbes, writing during the English Civil War, opposed the separation of powers, believing that only a strong and unified central government could ensure peace. John Locke, for his part, was more concerned with curbing monarchical power and regarded the separation of legislative and executive powers as one way to do that.

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Having fought against what they regarded as the tyranny of George III, the American revolutionaries wanted to ensure that no such tyranny could arise in the new nation that they were establishing. To do so, they wrote the doctrine of the separation of powers into its constitution.

As a result, neither the president nor Cabinet officials are members of the legislature, and they cannot be removed from office by a legislative majority. At the same time, the legislature controls the budget and the government’s ability to borrow. The potential for impasse is obvious.

We might think that the Founding Fathers deserve the credit for the fact that the U.S. government has never devolved into tyranny. But the same can be said of Britain’s government, despite the absence of a constitutional separation of powers between the legislature and the executive—indeed, despite the absence of a written constitution altogether.

Nor have former British colonies like Australia, New Zealand, and Canada become tyrannies. In contrast to the U.S., however, the prime minister and Cabinet officials in all of these countries are members of the legislature, and governments hold office only so long as they retain the confidence of a majority of the parliament’s lower house (or, in New Zealand, of its only house). If the legislature denies the executive the money that it needs to run the government, the government falls and is replaced by a new government, perhaps on a caretaker basis pending an early election.

Given the U.S. Constitution’s fundamental flaw, what seems improbable is not the current crisis, but the fact that such impasses between the legislature and the executive have not caused chaos more often. That is testimony to most U.S. legislators’ common sense and to their willingness to compromise in order to avoid doing serious harm to the country they serve—until now, that is.

Constitutional amendments must be ratified by three-quarters of the states, which means that at present there is no realistic prospect of changing the Constitution sufficiently to overcome the flaw that has made the current crisis possible. But a different factor that contributes to the hyperpartisan nature of U.S. politics today could be changed without amending the Constitution. We can best grasp this problem by asking why many members of the Republican Party who have voted in the House of Representatives to force the government to shut down are not worried that their tactics—which will undoubtedly harm many of their constituents—will fuel an electoral backlash.

The answer is that the districts from which House members are elected are gerrymandered to an extent that citizens of most other democracies would consider preposterous. This happens because responsibility for drawing the districts’ boundaries generally falls to state legislatures, where the party in control is free to draw them to its own advantage. Nowadays, the Republicans control most state legislatures, enabling them to win a majority of House seats despite lacking the support of a majority of the American public; in the 2012 congressional election, Democratic Party candidates countrywide received 1.4 percent more votes than Republicans.

The gerrymandering of  congressional districts means more than that the House of Representatives is not representative of the population as a whole; it also means that many incumbents are in no danger of losing their seat in an election. The real danger—especially in the Republican Party—comes largely from those who are further to the right than the incumbent. To be seen as a moderate is to risk defeat, not at the hands of voters as a whole, but in the Republican Party’s nomination contests, in which high turnout among the party’s most fervently committed members gives them disproportionate influence over outcomes.

One could imagine cool heads in both parties cutting a deal based on an understanding that it is in America’s interest to establish an impartial commission to draw fair boundaries for all House electoral districts. There is no constitutional barrier to such an arrangement. In America’s current environment of extreme political polarization, however, such an outcome is almost as unlikely as a constitutional amendment preventing the House of Representatives from denying the government the funds that it needs to govern.

This article was originally published by Project Syndicate. For more from Project Syndicate, visit their Web site and follow them on Twitter or Facebook.

Peter Singer is professor of bioethics at Princeton University and laureate professor at the University of Melbourne. He is the author of Animal Liberation, among other books.

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