 |
|
Much of the analysis in the wake of the recent impeachment crisis concerns the question of who in Congress acted constitutionally and who was partisan. This question requires some unraveling.
To begin, what does it mean for Congress to act constitutionally? The central institutional feature of the Constitution is separation of powers — the division of government's powers between the executive, legislative and judicial branches. In this context, the constitutional duty of officeholders is to defend their branches' prerogatives, even when this means rising above partisanship. Thus James Madison wrote that "ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place." The separation of powers will not work if officeholders won't or can't defend their institutions against the other branches.
This is clearly the sense in which Watergate has been understood for a quarter century. Republicans who sided with Democrats in that crisis have been portrayed as bipartisan, because they abandoned the president of their own party and joined members of the majority in defending congressional prerogatives. This was explained at the time as a constitutional imperative. As Congressman Chet Holifield noted, "the larger issue at stake is the prerogative of the Congress, its power and prestige as an institution."
After Watergate the congressional majority forged new tools for confronting the presidency, including the Office of Special Counsel. And it employed these tools even against its own party's presidents: Democratic Congresses used provisions of the Special Counsel law against President Carter in the 1970s and authorized Kenneth Starr's investigation of President Clinton in the early '90s. But in recent years, the argument that it is Congress's constitutional duty to defend its prerogatives against the presidency has been virtually abandoned. Likewise the idea that such a defense is the ground of congressional bipartisanship. To the contrary, during the recent impeachment trial, Democrats forcefully defended presidential prerogatives. And "bipartisan" was a label bestowed on Republicans who joined them.
What explains this abrupt reversal? Why, in Madison's terms, have the ambitions and interests of congressional Democrats and many Republicans become disconnected from the constitutional rights of Congress and attached instead to those of the presidency?
Here it is necessary to consider the purpose of separated powers, as well as the longstanding partisan debate in America about its merits.
The separation of powers was designed, among other things, to uphold the principle of limited government. It provides a means to prevent any single branch from accumulating sufficient power to act tyrannically or unlawfully. But in the mid-1960s, a debate emerged over the virtues of limited government, and thus over the benefits of separated powers. So-called conservatives stood for the older view that government should be limited to protecting individual rights and maintaining the conditions for a free society. So-called liberals argued that government should do more, and supported the erection of an administrative state which would solve all of society's economic, social and cultural problems through a vast and powerful regulatory bureaucracy — a bureaucracy that combined many of the powers the Constitution had separated.
In subsequent years this debate has been manifest largely in confrontations between presidents and Congress. For most of this period, pro-bureaucracy Democrats held the legislative branch and anti-bureaucracy Republicans the White House. Reconsider Watergate in this larger context: Nixon was perceived as a threat to the administrative state after his landslide re-election in 1972. In his second Inaugural Address he opposed "solutions of a purely governmental kind for every problem." More importantly, his 1973 budget was designed to cripple the burgeoning bureaucracy. House Speaker Carl Albert responded by vowing that Congress would "not permit the President to lay waste the great programs...inaugurated by FDR and advanced and enlarged by every Democratic president since then." So when Watergate came to a head, Congress's defense of its prerogatives, and thus of the separation of powers, was perfectly compatible with its partisan support of the administrative state.
This compatibility held up for two decades. But it eroded when the Republican party took over Congress in 1994 and many Republicans began to speak recklessly of the "irrelevance of the president" and of their "revolutionary" intentions to cut back government. This talk only served to revitalize the moribund Clinton presidency, giving it a purpose which resonated with every interest in the country which had established ties with, or received benefits from the federal bureaucracy over the past four decades. This included congressional Democrats, whose previously chilly relations with the President became warm.
In this light, the lesson of the recent impeachment crisis is clear: unlike congressional opponents of the administrative state during Watergate, its congressional supporters in both parties today place their policy agenda before their allegiance to Congress, the separation of powers and the Constitution itself. This is not so shocking as its sounds, given that their conception of social justice--bringing about the good society through the bureaucratic apparatus of the administrative state--presupposes that limited-government constitutionalism is fundamentally lacking.
The Constitution did not create a system to mandate a good society through centralized regulation, because the Framers were doubtful that this was humanly possible. They were deeply familiar with attempts by religious authorities to establish good societies, which attempts had resulted not in justice but in tyrannies of the clergy. Consequently, the Framers only attempted to create the conditions of a free society, in which the people themselves would determine the meaning of the good life.
Barring a return to the Framers' limited-government constitutionalism--against which Democrats are united and on which Republicans are divided--it only remains to be seen whether the good society implicit in the idea of the administrative state will achieve justice or a tyranny of bureaucrats. Either way, the recent impeachment crisis, in which Congress abandoned many of the forms as well as rejecting the underlying philosophy of constitutionalism, will be seen as a significant step in that direction.
