American Experiment

by James Macgregor Burns

  Save in war, the Framers’ fundamental strategy of government was not harshly tested until the depression years, when the public demanded that the government act. So effective was FDR’s masterful combination of moral leadership, indefatigable horse trading, and delicate manipulation that the failure of the New Dealers to end unemployment and rural and urban poverty was not fully recognized. It was only after World War II, when analysts compared the limited economic success of the New Deal with the massive wartime improvement in employment, wages, public housing, nutrition, that scholars and practitioners proposed changes to strengthen the institutional linkages between President and Congress: simultaneous election of President and all legislators; a joint executive and legislative cabinet to set policy; a broadening of the impeachment power; Senate ratification of treaties by majority rather than two-thirds vote.

  Two hundred years earlier the Founding Fathers had not only framed proposals far more bold and sweeping than these; they had written them into a constitution and then prevailed on suspicious but open-minded grass-roots leaders to adopt them. Politicians, scholars, and journalists largely ignored the proposals of the mid-twentieth century “re-framers” or greeted them with hostility and ridicule.

  But some critics responded to would-be reformers with analysis rather than anger, challenging the reformers’ basic assumption that constitutional checks and balances impeded good government. “There are two fundamental arguments for a constitutional system of separate institutions sharing powers: It helps preserve liberty and it slows the pace of political change,” wrote political scientist James Q. Wilson. “Those arguments are as valid today as they were in 1787.” The interplay of conflicting leaders might bring slower, more incremental progress, but it would be safer and sounder.

  Was there a better way—some means of shaping a more unified, effective, and responsible government that would not open the Pandora’s box of constitutional alteration? A group of political scientists, meeting in the late 1940s, had urged in effect that Americans return to the party system that the “party framers”—not only Madison and Hamilton but Jefferson, Jackson, Van Buren, and later the great Republican party leaders—had shaped in the century after the founding. Their report, “Toward a More Responsible Two-Party System,” proposed some significant institutional changes: stronger national party organization in the form of a top governing council of fifty party and electoral leaders; a biennial national convention; a more representative national committee and more cohesive and disciplined House and Senate parties based on a combination of stronger leadership and democratic decision making by caucuses.

  These party proposals met much the same response as had schemes for constitutional modernization: hostility, derision, inattention, along with some scholarly analysis. While the report had some impact on the thinking of journalists, it largely lay neglected both by politicians and by academics. Proposals for party change during the 1960s and 1970s took an entirely different direction: proportional representation of women, young people, and minorities in the selection of Democratic party convention delegates and other devices to “democratize” the Democracy, in the spirit of party reform.

  Was it possible to have both strong parties and democratic parties? A number of state Democratic parties, such as those in Iowa, Minnesota, and Massachusetts, combined participatory, caucus-based local structures with good organization and leadership at the state level. Nationally the Republicans liberalized a bit some internal party processes and urged state parties to bring in more women, minority persons, the old and the young, and “heritage groups.” The GOP also modernized its fund-raising and promotional activities, which helped bring the Republicans their stunning presidential victories of 1980 and 1984.

  For some years “constitution modernizers” and “party renewers” pursued their separate paths. Each group in its own way sought to outwit the Framers—to pull together the government branches that the Constitution put asunder. The modernizers would do so by modifying the constitutional checks and balances, the renewers by building party ties that would bind President and Congress, House and Senate, despite the checks and balances. Party renewers contended that constitutional modernization, desirable though it might be, would never occur because the American people would oppose any major tampering with the sacred document. Constitution modernizers replied that strong enough party bridges could never be built over the wide constitutional chasms that separated legislators and executives.

  During the 1980s the two groups bridged their own chasm to a considerable degree. Constitution modernizers recognized that they could not outwit the Framers unless they used the Framers’ own strategy. If the essence of the checks and balances was to seat President, senators, and representatives in separate and rival constituencies, then the antidote was to build a nationwide two-party constituency so that the leaders of the winning party could govern with the support of their partisans across the nation. If conflict among branches of the government could be transformed into conflict between a government party and a “loyal opposition” party, the former could expect to have considerable control over policy, at least until the next presidential election.

  Party renewers, for their part, came increasingly to recognize that the two major parties had become so infirm that they could never revive on their own, even to the level of strength they had enjoyed in the nineteenth century. Present-day parties needed artificial stimulation—and if institutional checks and balances had tended to fragment the parties, then knitting the government together organizationally or structurally might in turn unify the parties.

  After many a summit conference, constitution and party renewers agreed on a “minimal” program: granting representatives four-year terms concurrent with the presidential, thus abolishing the “unrepresentative” midterm election; granting senators eight-year concurrent terms so that President, representatives, and senators would take office together and thus provide the basis for teamwork; permitting members of Congress to sit in the cabinet without giving up their congressional seats; replacing the two-thirds treaty requirement in the Senate with a simple majority-rule requirement in both chambers; broadening the impeachment power so that Presidents could be removed not only for malfeasance but also for losing the confidence of both parties in Congress and in the nation; strengthening national parties, especially in their opposition role; and, perhaps most important of all, establishing the foundations of party leadership unity at the grass roots by allowing voters to choose between party slates for federal offices and “vote the party ticket.”

  The American people as a whole were supremely uninterested in these proposals. Most leaders, having risen to office under the existing system, were reluctant to junk it. Bold thinking about radical institutional reform was as rare in the 1980s as it had been rife in the 1780s. Two hundred years later it was still hard to outthink or outperform the Framers.

  As the last barrage of star bombs lighted up the Philadelphia skies in September 1987, Americans concluded months of unbridled constitution worship during that bicentennial year. It was clear that they honored the Founding Fathers in every regard—with one exception. They were in no mood to emulate the Framers’ willingness to stand back from the existing constitution in 1787—the Articles of Confederation—and not only criticize but alter and in the end abolish it. During the flush times of the late 1980s Americans would only celebrate the Constitution, not criticize or even cerebrate about it.

  The reason was not only Constitution worship. Americans had an instinctive feeling, buttressed by years of surviving crises, that in a pinch their ultimate safeguard lay not in constitutions and parties but in the President. It was to the White House that they had turned for reassurance, inspiration, consolation, explanation, drama. FDR’s forthright actions during the Hundred Days of 1933, his later responses to the Allies’ need for war aid, Truman’s quick action after war broke out in Korea, Kennedy’s mobilization of the whole executive branch to force Big Steel to roll back a price incr
ease—these and countless other incidents fed the image of the President as western sheriff riding to the rescue.

  Why go through the painful effort of changing the system when the law-and-order men were so easily available? But did the lawmen truly stand for law and order? Watergate, of course, revealed the opposite, but the cast of characters seemed so bizarre that defenders of the presidency could dismiss it as an aberration. Washington insiders knew of myriad other White House misadventures and cover-ups, but it remained for the Iran-Contra revelations to dramatize the extent to which the President—and hence the people—had lost control of the presidency.

  The popular idea of presidential abuse of power was of a Nixon or Johnson seeking to seize control, but their reasons for power grabs may have lain more in presidential frustration than in presidential feistiness. In many cases, the White House acted because the system as a whole seemed paralyzed in the face of crisis, whether depression, Nazi aggression, civil rights violations, the “communist menace,” or hostage seizures. Under such pressure the White House could become a “rogue presidency”—an unsaddled beast, unable to control itself, on the rampage through the wilderness of the American political system. Iran-Contra and all the other excesses and usurpations demonstrated that this beast might be too hard to tame, too dangerous to ride.

  Hence Americans had come to rely on the judiciary both to tame the presidency and to take leadership on its own. With neither the Congress nor the President able or willing to act on civil rights, the Supreme Court had moved into the vacuum, most notably with its epochal Brown decision of 1954. Since that time—and even after LBJ and his Democratic Congress put through the great civil rights measures of 1964 and 1965—the Court had continued to make policy in the most sensitive areas: First Amendment liberties, women’s rights, the environment, affirmative action, criminal procedure, privacy.

  The resurgence of the “imperial judiciary,” of “government by judiciary,” of the Supreme Court as super-legislature, intensified a debate that had proceeded off and on ever since John Marshall’s assertion of judicial power in 1803. During Marshall’s leadership of the Court, champions of states’ rights denounced its nationalizing thrust and its government by judiciary. They complained less of judicial power, and antislavery leaders complained more, with the arrival of the Taney Court and the enunciation of Dred Scott in 1857, in which the Court for the first time vetoed a major substantive act of Congress. The course of the debate over the next century demonstrated that in judicial politics as much as legislative and electoral, much depended on whose ox was gored.

  The quickest flip-flop occurred during the 1930s and 1940s. As the High Court dismantled part of the New Deal in 1935 and 1936, New Dealers denounced the “nine old men” and their power, while conservatives toasted “judicial independence.” Within a decade or two the right was denouncing the “Roosevelt Court” and its reach, while liberals exulted in the Court’s upholding of New Deal and Fair Deal measures and their implementation—and welcomed especially its intrusion into desegregation and other civil rights areas. The stakes in this legal, political, and ideological battle became much higher as the judiciary moved into wider and wider policy fields and as claimants turned to the courts for relief because they could not win action from the legislative and executive branches.

  It was clear that conservatives would have to wait for another shift of the party pendulum before they could hope for a switch in Supreme Court philosophy. Eisenhower had not been much help with his appointment of Earl Warren as chief justice—a choice the President later called his biggest mistake—but Ike after all was a moderate Republican in rightists’ eyes, and hence prone to errors of this sort. With Nixon’s election in 1968 and reelection in 1972, conservatives could hope for a return to judicial sanity after the excesses of Warren and his brethren. And Nixon came through with the appointments of two dependably conservative jurists in William H. Rehnquist and, above all, Warren E. Burger, whom he named chief justice in 1969 after Warren’s resignation. At last the Court would be following the election returns.

  But it was not all that simple. For one thing, the Burger Court harbored several holdovers from previous Administrations, including the leader of the liberal faction, William L. Brennan—another Eisenhower appointee— and Thurgood Marshall. No judge worthy of presidential appointment and Senate confirmation, moreover, was likely to tread a narrow ideological line, whatever his background. Once faced with concrete cases, the justices were constrained by constitutional heritage, judicial precedent, decisions of lower courts coming up on appeal, the exchanges in their own semi-weekly conferences, the attitudes of their clerks fresh out of law school, and above all by the complexity and intractability of cases before them. Nixon’s two other appointees showed the influence of office: Lewis F. Powell proved a consummate centrist, becoming in the later years of the Burger Court a crucial and unpredictable swing vote in close decisions, and Harry A. Blackmun often joined the liberals, casting the deciding vote—and writing the opinion—in Roe v. Wade.

  So the Burger Court brought no judicial counterrevolution. Rather it followed a meandering middle way as it mediated among issues. Thus on school desegregation the High Court in 1973 held that the Denver school board had practiced a policy of segregation in choosing sites for school buildings and in its pupil transfer plans, but the Court reflected widespread public opposition to busing when in 1974 it rejected a broad plan to integrate the overwhelmingly black school systems of metropolitan Detroit with fifty-three overwhelmingly white suburban school districts, and in 1976 vetoed a federal district court’s plan for Pasadena that barred any school from having a majority of black students. In a 1978 case, Regents of the University of California v. Bakke, the Burger Court struck down a medical school quota system that allotted a fixed number of admissions for minority applicants. Applying the Fourteenth Amendment in this first great test of “reverse discrimination,” the Court held that Allan Bakke, a white applicant whose test scores were superior to those of some of the minority applicants accepted by the medical school, had been denied his right to equal protection. But while disapproving the school’s “explicit racial classification” and its fixed quotas, the Court acknowledged that the State had “a legitimate and substantial interest” in ameliorating or eliminating “the disabling effects of identified discrimination.” In the thorny field of discrimination against women the Court generally was protective of women’s rights in specific cases but refused to adopt a rigorous test that would deem gender classification, like racial classification, as inherently suspect, unless it served an overriding State interest.

  Expected to offer a consistently law-and-order interpretation of the Fourth Amendment, the High Court cautiously picked its way between upholding and vetoing state law-enforcement procedures. The Court, perhaps recognizing that for millions of American commuters their car as well as their home was now their castle, threaded an especially narrow course on searches of vehicles. “While the justices gave state police broad latitude to conduct auto searches,” students of the Court wrote, “they prohibited warrantless interrogation of motorists to check driver’s licenses and registrations without probable cause suggesting possible criminal activity. If the Burger Court permitted police to search the passenger compartment of a car stopped for a traffic violation and to seize evidence subsequently used to prosecute for violation of narcotics laws, it also prohibited the search of a vehicle’s luggage compartment.” Between the back seat and the luggage compartment lay a narrow line indeed.

  In other areas the Burger Court also took a mixed position. On protection against self-incrimination, it continued the Warren Court’s Miranda doctrine but refused to broaden it. Its ruling in Roe v. Wade was a victory for women’s rights, but the Court afterward sustained denials of public funding for abortions. It protected or even enlarged free speech in some cases but narrowed it in others, as in cases of pornography or of leafleting or picketing in privately owned shopping malls.

  Reject
ing such eclecticism, the Republican right greeted with new hope Burger’s decision to quit the Court in 1985 to head the nation’s official bicentennial commission, and with even greater hope Reagan’s elevation of Rehnquist to Burger’s seat and his choice of two associate justices with impeccable conservative credentials. A minor consequence of conservative satisfaction was that the broad issue of the Court’s power to invalidate laws on a variety of grounds—one of the most important and potentially explosive issues of American democracy—was hardly touched upon during the cerebrations of the 1987 bicentennial. Instead, oceans of ink and flights of oratory were devoted to a lesser though equally fascinating question, original intent.

  This question was propelled into the forensic arena when Reagan’s Attorney General, Edwin Meese III, calling for a “Jurisprudence of Original Intention,” intimated that his chief would pick only judges whose applications of the Constitution would reflect the intentions of the Framers. Law school professors, historians, political scientists, and Supreme Court justices pounced on this dubious notion, proved conclusively that it was wrong historically—and then wondered whether they had won a glorious intellectual victory on a side issue. The scenario was repeated when Reagan proposed Robert H. Bork for the High Court—the Senate foes won the debate over original intent, handily vetoed Bork, but were left with a Pyrrhic victory after the President found an almost equally conservative substitute.

  The central issue of judicial power was also one of intellectual leadership. In their meandering course, the Burger Court, and for a time at least the Rehnquist Court, appeared deceptively eclectic, moderate, practical. But that course concealed a lack of jurisprudential and philosophical coherence in the very heart and brain of the federal judiciary. At best the Reagan Court was marking time; at worst it was losing time, failing to develop clear and consistent operational standards related to the nation’s values, storing up trouble for the future, its incoherence rivaling what the Iran-Contra hearings revealed in the presidency, and with perhaps equally grave consequences.