Madison No More…

My good friend Sandy Levinson of the University of Texas law school has a typically astute discussion on Balkinization of the increasing inaccuracy and irrelevancy of the Madisonian vision of separation of powers.

Briefly (very briefly: read Sandy’s whole post), the argument (which relies in part on the work of another, unrelated Levinson) is that the emergence of political parties undermined institutional loyalty of members of Congress to Congress (and, by implication, of ideological — read partisan — judges to courts).

…. The organization of political parties, one of whose main goals is the election of presidents who can implement the party’s agenda, negates any serious notion that the “interest” of the member of Congress is necessarily linked with the “constitutional rights of the place” (Congress) rather than the flourishing of the political party. They view their interests as lying with the achievement of the party’s agenda, which is set, when the party controls the Presidency, by the White House….

The question of Madison’s relevance is no merely academic exercise. As Sandy writes,

We are about to see an important test of [Darryl — the non-Sandy] Levinson’s hypothesis in the confirmation hearings — and, more to the point, the voting — on Samuel Alito’s nomination to be a member of the United States Supreme Court. In two earlier postings, I have suggested that Alito’s nomination is part of a systematic effort to reinforce the aggrandizement of the institutional powers of the presidency by, in this instance, placing on the Supreme Court someone who is predicted to be a solid vote in favor of presidential prerogative….

If Madison were correct, then one would predict that Alito’s nomination stood almost no chance. There is no reason for any member of what might be termed a “Madisonian” Congress to vote for Alito. Instead, senators would be looking for someone who had demonstrated great respect for the Congress and seemed likely to take Congress’s side in any potential struggles with the White House. This is, of course, not happening. Instead, Republican members of the Congress, whether “self-hating” (in the way that Jewish critics of Israel are often accused of being “self-hating Jews”) or simply indifferent to reality, seem more than happy to support Alito.

So the question this time around is whether any Republican, stirred by recent White House assertions of unfettered power with regard to torture or to domestic spying, will break ranks. Or will they all be proud lemmings, willing to support “their President” in spite of his demonstrated contempt for Congress even as a co-equal branch of government? If, as I fear, the answer is the latter, then Madison will be proved, as clearly as is possible, utterly wrong in his speculations about political psychology, and we will all have to contemplate ever harder what remains of our purported commitment to separation of powers and checks and balances.

I think the argument that the rise of political parties and the attendant loyalties they both undermined and engendered put a serious dent in the Madisonian notion of separation of powers, though possible to exaggerate (as, possibly, here), has a lot of merit. But, as someone quite familiar with both Sandy’s impressive body of work and his views (through many years of discussions), I confess I am less interested in the relevance of Madison than in what this argument says about the shifting sands (shifting Sandys?) of modern liberalism.

It has not been that long since American liberals pinned their hopes on a strong, aggressive presidency. Their fears, correspondingly, were produced by what they regarded as a reactionary Congress and an elitist, conservative Supreme Court. But history happens; Earl Warren’s Supreme Court enlisted the sudden loyalty of liberals, and Lyndon Johnson’s war in Vietnam and Richard Nixon’s Watergate transgressions at home turned the tables on the relative merits of presidents vs. Congresses. Liberal heroes and villains seemed to be playing musical chairs.

Now the congruence of Bush-hatred and opposition to the war in Iraq, and the threat of having the Supreme Court take a most unwelcome turn to the right, have led to a strong, and new, affection for the separation of powers — meaning any power that can restrain President Bush or any Republican successor. (The election of a Democratic successor, however, would immediately douse the flames of this brush fire of affection for Congressional power.)

In short, as though in unconscious verification of his own theory of the triumph of partisanship, Sandy’s lament at the passing of Madison is itself purely partisan, revealed clearly in his critique of members of Congress — well, of Republican members of Congress and the Democratic senators who voted for Roberts — for not acting the way Madisonian theory says they should. This notion is even more jarring coming from Sandy than it would be from anyone else, since he has made a career arguing against veneration of the Founders, of letting the dead hand of the past control the present, even of the notion that text can have clear meaning.

His criticism of Republican Congressmen for not acting according to the dictates of Madisonian theory reminds me of the story — perhaps apocryphal — of the Stanford graduate student in political science back in the 1960s who set out to verify a then popular notion about the group basis of politics by interviewing local politicians in the surrounding area to find out what groups they were responsive to. When many of them couldn’t list any groups, the budding scholar concluded that Bay Area politicians were too stupid to know that politics has a group basis.