I wrote at some length earlier this week on the crucial role of the legislative filibuster in preventing transitory legislative majorities from saddling the nation with permanent legislation of great complexity. As with so many questions of great significance, the Founding Fathers had wise and useful foresight to offer on the dangers of frequent and complex changes in federal law. Let’s go to the words of James Madison in Federalist No. 62, his explanation of the virtues of the Senate:
The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.
To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.
In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.
The Senate is designed to ensure that no great and complex changes can come to the law, but by operation of the great majority of the people in the several states. The Framers designed it that way. We should be rightly suspicious of those who always want to change the rules when they cannot get their way.
Don’t get me started.
Eh, too late. We were also supposed to have Senators who were elected by the States, not the people. That was another check on the whimsy of the House. How’d that work out? See: Chuck Schumer.
The Founders were concerned the House would be influenced by special interests or factions, so they gave the President the veto. You need only look at Bush signing CFR to know how that worked out. No matter whether you credit special interests or public whimsy for that insult to the BoR, no way that should have passed muster in the Senate or the Oval Office.
The older I get, the more it looks to me like the Founders had a good handle on the kind of pressures the branches would face. Where we’ve gone wrong, you can usually look to changes we made and the unintended consequences of those.
When I was younger I thought the electoral college was an archaic joke. But I still wouldn’t risk changing it for anything. I am just not as smart as those guys, and anybody who telss you they know better just doesn’t have history on their side.
I like the electoral college as well – wouldn’t change it if I could. It sounds bad, but it’s there for a reason.
Back to your post, the Economist said the same thing about the Senate and filibuster:
“America’s political structure was designed to make legislation at the federal level difficult, not easy. Its founders believed that a country the size of America is best governed locally, not nationally. True to this picture, several states have pushed forward with health-care reform. The Senate, much ridiculed for antique practices like the filibuster and the cloture vote, was expressly designed as a “cooling” chamber, where bills might indeed die unless they commanded broad support.”
The article also has some suggestions:
“So the basic system works; but that is no excuse for ignoring areas where it could be reformed. In the House the main outrage is gerrymandering. Tortuously shaped “safe” Republican and Democratic seats mean that the real battles are fought among party activists for their party’s nomination. This leads candidates to pander to extremes, and lessens the chances of bipartisan co-operation. An independent commission, already in existence in some states, would take out much of the sting. In the Senate the filibuster is used too often, in part because it is too easy. Senators who want to talk out a bill ought to be obliged to do just that, not rely on a simple procedural vote: voters could then see exactly who was obstructing what.”
economistDOTcom/opinion/displayStory.cfm?story_id=15545983&source=hptextfeature
I don’t agree with the filibuster reform suggestion; I’d leave it alone. The gerrymandering is worth solving, but that’s easier said than done, and I’m not entirely convinced it’s the root cause of the problem.