- Cognitive Madisonianism Part Deux - Divided government, protecting the filibuster, and voting for hypocrites.

 Biden Shrugged  

The 2016 presidential election stunned pundits and voters alike (including the Dividist). But, as surprising as the electoral victory of Donald Trump was in 2016, a case can be made that the 2016 Senate election results were even more shocking. And therein lies a lesson for 2020.

Four years ago, The Dividist shared his thoughts on the 2016 election in a post entitled "Cognitive Madisonianism, splitting tickets, the 2016 Senate race, and why American voters are smarter than pundits and political scientists."

The Dividist was enthralled to discover the phrase "Congnitive Madisonianism" and eager to put it to use. As he explained then, it is a political science term for the simple concept that American voters, in their collective wisdom, prefer and vote for divided government. That concept being the raison d'etre for this blog, the reader can appreciate the Dividist's enthusiasm.

In that post we assessed the current state of the election and made some predictions about the likelihood of maintaining our happily divided government across the new year:

"In 2016 the GOP will keep the House majority, the Democrats will keep the Executive branch and our government will stay happily divided regardless of what happens in the Senate. The dividist voting heuristic strives to Keep It Simple Stupid and walk the simplest path of least resistance to keeping the government divided. In 2016, that path is to vote Clinton for President (or - at the least - not vote for Trump), and vote to reelect your Republican Congressman. For the Senate - vote your conscience."

In 2016, the Dividist could see a rationale to vote for either party gaining majority control in the Senate:

"The best dividist reason to support a Democratic Senate is based on the fear that some "Black Swan", "October surprise" event (e-mails, Wikileaks, Clinton Foundation, Trump quitting the race, etc) will derail the Clinton campaign juggernaut sufficiently to let the GOP nominee be elected President.  A Democratic Senate is a backstop to prevent Unified One Party Republican Rule.

The best dividist reason to support a Republican Senate is based on moderating Supreme Court picks. If the Democrats win the Senate there is a real possibility they will implement a "Nuclear Option" rule change for Supreme Court nominees. That means a Clinton Presidency and Democratic Senate could steamroll a GOP minority and confirm anyone Clinton nominates for the Supreme Court. They might even withdraw Garland to nominate and confirm a more reliably liberal judge.

Given the continuing catastrophe of the Trump campaign, the Dividist thinks hoping for a GOP Senate and moderation of Clinton picks for the Supreme Court is the better choice."

You win some. You lose some. For a current comparison, our 2020 prediction is that the Democrats will keep the House majority, Joe Biden and the Democrats will win the Executive Branch, and the best way to keep the government divided will be for the GOP to hold a slim Senate majority. But, as in 2016, the outcome of the Senate races in 2020 are very much in doubt.

That Was Then. This Is Now.

Divided Government Detritus and Flotsam - The "Keep Separation of Powers Separate" Edition

Periodically, the Dividist enjoys strolling down a metaphorical beach to take note of the divided government detritus that has washed ashore and cluttered his little island of rationality in the great big blogospheric ocean.

With the midterm elections looming large, the prospect of a blue tsunami on the horizon sweeping Democrats into a House of Representatives majority have Democrats giddy and Republicans worried (except for the #NeverTrumpers who are just fine with divided government this cycle.)

Time to go beachcombing and look for any shiny bits of divided government flotsam we may have previously overlooked. Submitted here for your reading enjoyment...

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Jonathan Haidt explains the impact of tribalism on the Framer's intent. 

While participating in a twitteratti discussion on the impact of tribalism on our body politic (along with a generous helping of Trump bashing), the Dividist stumbled across a lecture by Jonathan Haidt entitled "The Age of Outrage." Haidt fuses issues of tribalism, identity politics, polarization, intersectionality, illiberal "liberals", the Social Justice Snowflakes so evident on college campus, and - most interesting to the Dividist - the relevance of the Framer's intent to all of the above. In particular this beautiful, almost poetic, description of what the Framer's were trying to create and why:

"Here is the fine-tuned liberal democracy hypothesis: as tribal primates, human beings are unsuited for life in large, diverse secular democracies, unless you get certain settings finely adjusted to make possible the development of stable political life. This seems to be what the Founding Fathers believed. Jefferson, Madison, and the rest of those eighteenth-century deists clearly did think that designing a constitution was like designing a giant clock, a clock that might run forever if they chose the right springs and gears. 

Thankfully, our Founders were good psychologists. They knew that we are not angels; they knew that we are tribal creatures. As Madison wrote in Federalist 10: “the latent causes of faction are thus sown in the nature of man.” Our Founders were also good historians; they were well aware of Plato’s belief that democracy is the second worst form of government because it inevitably decays into tyranny. Madison wrote in Federalist 10 about pure or direct democracies, which he said are quickly consumed by the passions of the majority: “such democracies have ever been spectacles of turbulence and contention . . . and have in general been as short in their lives as they have been violent in their deaths.” 

So what did the Founders do? They built in safeguards against runaway factionalism, such as the division of powers among the three branches, and an elaborate series of checks and balances. But they also knew that they had to train future generations of clock mechanics. They were creating a new kind of republic, which would demand far more maturity from its citizens than was needed in nations ruled by a king or other Leviathan.. 

So, how are we doing, as the inheritors of the clock? Are we maintaining it well? If Madison visited Washington, D.C. today, he’d find that our government is divided into two all-consuming factions, which cut right down the middle of each of the three branches, uniting the three red half-branches against the three blue half-branches, with no branch serving the original function as he had envisioned."

It's a great lecture, you should read it in its entirety or watch it here:

NY Times offers two cheers for divided government.

The graphic is a little forced, but you've got to hand it to Peter Baker in the NY Times - he gets it. Our federal government is not dysfunctional. It works this way for the simple reason that this is exactly how it was designed and intended to work:

Hip, Hip — if Not Hooray — for a Standstill NationBy PETER BAKER

"Is this any way to run a country? As it happens, yes. Ideal it is not. Inspiring, hardly at all. But the fractious, backbiting, finger-pointing, polarizing, partisan, kick-the-can-down-the-road brinkmanship of Washington politics these days is, let’s face it, the reality of American governance in the modern era. For all the hand-wringing about how the system is broken, this is the system as it was designed and is now adapted for the digital age. All the high-minded vows to put politics aside for the greater good ignore the fact that the system is built on politics, with the idea that politics, however ugly, eventually can produce a greater good, however imperfect... 

Moreover, it’s useful to remember that the founders devised the system to be difficult, dividing power between states and the federal government, then further dividing the federal government into three branches, then further dividing the legislative branch into two houses. The idea, James Madison wrote, was to keep factions from gaining too much power, presuming that “a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”

And to be sure, gridlock is in the eye of the beholder. For those whose ox would get gored — for instance, those adamantly opposed to tax increases or to cuts in entitlement benefits — a little stalemate may not seem like a bad thing if it prevents what they consider a worse outcome. One person’s obstructionism is another’s principled opposition."

The Dividist is experiencing a bit of cognitive dissonance reading something this spot-on in the Times. The Dividist needs to sit down for a spell. The Dividist does not recall reading anything in the Times casting divided government in quite so favorable a light at any time prior to the 2010 election. You don't suppose the fact that avoiding one party rule in 2010 meant voting Republican and avoiding one party rule in 2012 means voting to re-elect President Obama has anything to do with it - do you? Nah. Certainly not.

In any case - the read is well worth consuming one of your 20 free NYT articles in June.

Divided and Balanced.™
Now that is fair.

Gridlock is really good. Really.

The Dividist has complained in the past about the propensity of pundits and bloggers to conflate the concepts of "divided government" and legislative "gridlock". The terms are often used erroneously as interchangeable synonyms. Yet, even the Dividist has occasionally employed this semantic shortcut, such as in the July, 2010 post "Gridlock is Good." In that post the beneficial aspects of partisan legislative gridlock was presented in the form of gridlock preventing a negative outcome - specifically stopping bad bills from being passed into law (see legislative abominations - Porkulus and Obamacare as examples of the damage done when one party has the power to pass legislation on pure partisan votes). The underlying common sense notion is that divided government and partisan gridlock prevent the worst instincts of either party from becoming law. When the moderating influence of legislative gridlock is bypassed, we get legislation no one really understands, except the special interests that helped craft it. So we are treated to the spectacle of our legislative leaders explaining that we won't know what sweeping legislation will accomplish until after it is signed into law. Our legislators may not know what they are passing, but once it gets to the agencies administering the law, the special interests do.

In a recent Cato Institute Policy Analysis, Marcus E. Ethridge (University of Wisconsin Political Science Professor) outlines a new positive argument for the inefficient, constitutionally divided, and often gridlocked legislative process. Ethridge offers a compelling case that our inefficient checked, balanced, and divided government is far less susceptible to special interest influence than the more efficient executive branch agency rule-making process preferred by Progressives impatient for rapid change.

Cato Institute Policy Analysis #672 - The Case for Gridlock:

"In the wake of the 2010 elections, President Obama declared that voters did not give a mandate to gridlock. His statement reflects over a century of Progressive hostility to the inefficient and slow system of government created by the American Framers. Convinced that the government created by the Constitution frustrates their goals, Progressives have long sought ways around its checks and balances. Perhaps the most important of their methods is delegating power to administrative agencies, an arrangement that greatly transformed U.S. government during and after the New Deal. For generations, Progressives have supported the false premise that administrative action in the hands of experts will realize the public interest more effectively than the constitutional system and its multiple vetoes over policy changes. The political effect of empowering the administrative state has been quite different: it fosters policies that reflect the interests of those with well organized power. A large and growing body of evidence makes it clear that the public interest is most secure when governmental institutions are inefficient decisionmakers. An arrangement that brings diverse interests into a complex, sluggish decisionmaking process is generally unattractive to special interests. Gridlock also neutralizes some political benefits that producer groups and other well-heeled interests inherently enjoy. By fostering gridlock, the U.S. Constitution increases the likelihood that policies will reflect broad, unorganized interests instead of the interests of narrow, organized groups."

This is an important read but not an easy one. Etheridge challenges conventional thinking about why special interests hold such sway over public policy. He explores the mechanism by which their financial and lobbying muscle are applied to maximum effect influencing public policy and resources in direct contradiction to the public interest and even legislative intent. Distilling his 20 page argument into a blog post is difficult if not impossible. We will instead excerpt a few representative paragraphs, comment briefly on salient points introduced in his analysis and encourage you to read the whole thing.

Prop 8, James Madison and Majority Rule

Image ripped from Marko Ilic H/T Rojos

In the wake of Judge Vaughn Walker finding California's Prop 8 to be unconstitutional, we are treated to the predictable spectacle of hypocrisy on parade from politicos across the political spectrum including Newt Gingrich and Barack Obama.

The most compelling arguments against Judge Walker's ruling are premised on the notion that it violated majority rule. The argument takes a variety of forms: that a court overreaches when it substitutes its judgment for the clearly expressed judgment of a majority of voters; that it would be tactically better for same sex marriage proponents if was legalized by an electoral or legislative majority at either a state or federal level rather than judicial fiat; that it disrespects constitutional sanctity and founder's intent for majority rule. The argument is getting serious consideration across the blogosphere - some examples include The Crossed Pond, Ordinary Gentlemen, Andrew Sullivan, Allahpundit, Balloon Juice, Ann Althouse, Volokh Conspiracy, and others.

I am sympathetic to the preference for individual rights being protected by a popular majority and/or legislature as opposed to judicial means. Who would not? That said, I don’t think there is any basis for saying it is a decision that should not have been made by a judge. Let me hasten to state that I am not making a legal argument, as I am not qualified to do so, let us call this a constitutional/philosophical observation.

Our Constitution implicitly and explicitly establishes something of a hierarchy of rights and powers. Federal powers are specifically enumerated, with the power not delegated to the United States government by the Constitution reserved to the States. This clearly indicates a general preference for state's rights and powers. The preference for the superiority of majority rule can also be gleaned in the order that the branches of government are enumerated in the articles of the Constitution. First the democratic people’s House, then the republican Senate, then the executive (selected by a non-majoritarian electoral college), then the unelected judiciary. All would argue for the founder's obvious preference for and superiority of democratic majority decisions, and the state's exercise of power to that of the federal government.

But – then there is the Bill of Rights, without which the Constitution would never have been ratified. The enumeration of rights in the first 10 amendments is informed by a self-evident truth that all individuals are imbued with inalienable rights to life, liberty and pursuit of happiness - rights that are inalienable by kings, rights that are inalienable by majority rule. These rights are at the pinnacle of and/or transcend the entire hierarchy of preference of power found in the Constitution. The fundamental assertion of the Bill of Rights is that no power may abridge these rights – including a democratic majority at either the state or federal level. All branches of the federal government should regard protection of these rights against encroachment - regardless of source - as a primary responsibility.

Who better to speak to the limits of majority rule, than the architect of the Constitution - James Madison? In Federalist #10 he speaks directly to protecting rights from the majority:

“When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”

And again, in his speech at the Constitutional Convention introducing the Bill of Rights for consideration, Madison is clear about the limits of majority rule:

“But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be leveled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.“

So what should happen when the majority acts against a minority, as in Proposition 8? Particularly when we see the executive branch make a craven political decision to not act in support of the minority, and legislators at both the federal and state level unwilling to act in contradiction to the majority view? In such a case, it seems obvious that the judiciary is the last firewall to protect our liberty, and it is only the judiciary that can preserve our rights against the will of the majority. In such a case, not only is judicial action acceptable, it is necessary, even when it means substituting judicial fiat for democratic majority or legislative action. Self evident inalienable individual rights should trump the majority every time.

I suppose that one can argue that same sex marriage does not fall into the category of a self evident inalienable right to pursue happiness. This is where we probably cross the line from a constitutional argument to a legal argument. But on the broader question - whether a judge should substitute their judgment for the judgment of a majority? Yes they should. I was pleased with Judge Walker’s decision, as I saw Prop 8 as a clear attempt by the majority to impinge on the rights of a minority. Judge Vaughn Walker did his job and did it well.

Now if only our Congress would do their job, reassert their constitutional authority as a co-equal branch of government and begin to reel back in the ever expanding role of the Unitary Executive and our Imperial Presidency, then we might return to the founder's intent of an executive branch that "is not the stronger branch of the system, but the weaker" as also asserted by James Madison.

Divided and Balanced.™
Now that is fair.

"The maxim of civil government being reversed in that of religion, where its true form is..."

"... divided we stand, united we fall." The words of Thomas Jefferson in an 1820 letter to Dr. Jacob De La Motta. An image of the letter is above and the full text directly below.

Thomas Jefferson writing in the third person:

"Th. Jefferson returns his thanks to Dr. De La Motta for the eloquent discourse on the Consecration of the Synagogue of Savannah, which he has been so kind as to send him. It excites in him the gratifying reflection that his country has been the first to prove to the world two truths, the most salutary to human society, that man can govern himself, and that religious freedom is the most effectual anodyne against religious dissension: the maxim of civil government being reversed in that of religion, where its true form is "divided we stand, united, we fall." He is happy in the restoration of the Jews, particularly, to their social rights, and hopes they will be seen taking their seats on the benches of science as preparatory to their doing the same at the board of government. He salutes Dr. De La Motta with sentiments of great respect."

I came across this exchange of letters when I started this blog two years ago. I was researching previous usage of the phrase that became the title for this blog. It seemed a perfect title for the theme I was promoting - that our federal government functions better, with greater financial responsibility, more oversight, less corruption, produces better legislation and provides greater governance when the legislative and executive branches are not held by a single party.

I could not have been more pleased when I learned that the earliest usage of the phrase was written by the hand of Thomas Jefferson. His short letter speaks to the intent and the core convictions of a key founder and architect of our country and constitution. Consider the pride and importance that Jefferson invests in the principle of religious freedom and diversity in this letter. He finds it "gratifying" that our country was the "first to prove to the world" the "two truths" that are the most beneficial to human society - "that man can govern himself", and absolute "religious freedom" is the only answer to "religious dissension". It bears repeating - Thomas Jefferson considered religious freedom one of "two truths, the most salutary to human society".

On the occasion of the 1820 dedication of a synagogue in Savannah, Georgia, Dr. Motta wrote letters to both Jefferson and James Madison including the text of his dedication address. James Madison also replied:

"Among the features peculiar to the political system of the United States is the perfect equality of rights which it secures to every religious sect. And it is particularly pleasing to observe in the good citizenship of such as have been most distrusted and oppressed elsewhere, a happy illustration of the safety and success of this experiment of a just and benignant policy. Equal laws protecting equal rights, are found as they ought to be presumed, the best guarantee of loyalty, and love of country; as well as best calculated to cherish that mutual respect and good will among citizens of every religious denomination which are necessary to social harmony and most favorable to the advancement of truth."

The historical context of these letters serves to remind us of the continuous struggle to ensure that this truth is never forgotten, this freedom is never abridged, and the government is never permitted to express an official preference for any religion or sect. Despite the adoption of the Bill of Rights in 1787 guaranteeing freedom of religion and prohibiting a religious test for any public office, at the time these letters were written, Jews had been fighting for over 30 years to enjoy those guaranteed freedoms. Some states, like Maryland carried laws that imposed exactly such a religious test. From the American Jewish Historical Society:

Turks, Jews, and Infidels Need Not Apply
"Their 1797 petition initiated a 30-year fight to repeal the religious requirements for participation in Maryland public life. A committee of the Assembly found the Etting-Cohen petition "reasonable," but the Maryland legislature took no subsequent action. Etting and Cohen organized several more petitions between 1798 and 1804, each of which was supported by the Jeffersonians. The Federalists blocked passage of any reform act in Maryland’s upper chamber, which disproportionately represented conservative, anti-immigrant, rural areas. The Federalists argued that lifting the limitations in the constitution would open office holding not only to Jews, but also to "Turks and infidels."...
The "Jew Bill" adopted in 1826 did not directly amend or strike the offending clause from the Maryland constitution, where it still stands today. Rather, the bill circumvented it. The Maryland Assembly saw fit only to allow Jews who affirmed their belief in an afterlife to sit as members. Today, while the Maryland constitution still formally limits public office holding to Christians, the clause is never enforced and religious tests are never applied to lawyers or elected officials."

Like slavery, state sponsored religious tests and intolerance were recognized as evil by the founders of our nation, but like slavery, only partially addressed in their time.

And what of our time? Does the electorate still impose a religious test for public office? It speaks well for our time that Keith Ellison, the first Muslim congressman was elected in 2006 and serves today. But could a Muslim be elected president? The eagerness with which some have propagated and defended the fraudulent “Obama is a Muslim” e-mail points to how much religious intolerance remains. Could a Jew be elected President? Possibly. How about a Native American who practices the religious rituals and ceremonies of his ancestors? Could a professed atheist or agnostic get elected to major office anywhere regardless of secular qualifications?

These are question that every generation of Americans must answer for themselves. As Americans fought for the principle of religious freedom at the beginning of the American experiment, it falls to Americans of each generation, of every religion, race and creed, to ensure that in their own time their generation remembers and understands that - as regards religion - “divided we stand.”


EDITED: 03/23/08 - Fixed typos, added links

Divided and Balanced.™ Now that is fair.