Reviving a Constitutional Congress

Christopher DeMuth
Distinguished Fellow, Hudson Institute

Christopher DeMuthChristopher DeMuth Sr. is a distinguished fellow at the Hudson Institute. He served as president of the American Enterprise Institute from 1986–2008. A graduate of Harvard College and the University of Chicago Law School, he worked as a staff assistant to President Richard Nixon in 1969–1970 and as an administrator in the Office of Management and Budget and executive director of the Presidential Task Force on Regulatory Relief under President Ronald Reagan. From 1976–1980, he taught at the Harvard Kennedy School of Government and directed the Harvard Faculty Project on Regulation. He has also practiced law, and was for a time publisher and editor-in-chief of Regulation magazine.

Congress has yet to sign up for my Five-Step Plan. Media coverage of Congress suggests a reason: extreme partisanship and Republican disarray. There is something to this explanation, but it is superficial. More deeply, congressional decline is the result of profound changes in modern society and culture.

The representative legislature is the product of social thought and political contention going back to the ancient Greeks and Romans, running through the Magna Carta of 1215, and culminating in the 17th and 18th centuries in Europe and the United States. It became the institutional vehicle of republican aspirations against the prerogatives of kings and despots.

The problem was to devise a source of government authority that was secular, peaceable, and generally accepted as legitimate. The legitimacy criterion meant not only that citizens acquiesced in the government’s power, but also that the government was in some degree representative—that it embodied, defended, and furthered the characteristic values and interests of citizens and society. Representativeness was achieved, at various times and places, through assemblies of all citizens, of some citizens chosen by lot, or of self-appointed elites such as the barons and church officials who forced the Magna Carta on King John. But in the modern era it was increasingly achieved in the form of election by citizens voting in geographic territories. Legislators represented local political jurisdictions such as states in the U.S. Senate and districts in the U.S. House of Representatives.

The contemporary era has not been kind to this great inheritance. The idea that we should be governed by elected representatives of diverse local districts, who gather to make law by hammering out compromises, was conceived and developed when government was naturally constrained by what economists call high transaction costs. When travel and communications were slow and costly, legislative gatherings were crucial occasions for representatives to learn of developments in other regions, to take the measure of far-flung colleagues, and to forge alliances and make deals. When political organizing was costly, interest groups were few and broad-based, and established civic and political elites, including legislative elites, held sway. When surveillance, law enforcement, and program administration were costly, the executive could perforce do only a few things.

Modern affluence and high technology have disrupted all of those functions. Legislators no longer need to go to Washington to find out what is happening around the country, to form positions on political questions, or to plot and dicker with their peers—all of this can be done instantly and at much lower cost through the media, Internet, and direct communications. Well-organized interest groups are able to monitor, reward, and sanction individual legislators with great precision, drastically reducing the legislative space for deliberation and compromise. Multiplying pressures for government interventions have overwhelmed legislative capacities—while falling costs of administration have magnified the executive’s advantages of hierarchy, specialization, and capacity to add new functions.
The representative legislature has also been a victim of modern habits of mind, which tend to value identity over locality, rationalism over representation, and decision over deliberation. Each of the three branches of American government has its own distinctive principles of operation and legitimacy. The judiciary’s principles are reason and resolution—courts determine the facts of a dispute, resolve the dispute by deduction and inference from texts and precedents, and explain their reasoning publicly. The executive’s are personality and action—presidents incarnate important features of national character and aspiration, dominate political attention and debate, and take personal actions that settle some matters and redefine others.

The legislature’s principles—representation and compromise—are relatively unimpressive. Representing geographic localities is not what it used to be, because of globalization and increased personal mobility; locality is not without political importance, but many people today care more about representation of their personal values, group identities, and vocational and avocational interests. And individual legislators have little capacity for decisive personal action—their primary assignment is to negotiate with other representatives, leading to collective decisions that no one is entirely happy with or, quite frequently, to no decision at all.