Have We Outgrown Our Federal Constitution?

Session Submission Type: Full Paper Panel

Session Description

The papers in this panel address the essential, if somewhat provocative, question of whether the US has outgrown its federal Constitution. The US lays claim to the longest lasting written Constitution, which has had the ability over the past two centuries to adapt to changing political pressures and technologies. While the Constitution is resilient, it continues to face new challenges that often raise the same fundamental questions the Founders debated at the time of its ratification. The debate between the Antifederalists and Federalists focused on several key questions that remain pressing today, such as what is the nature of true representation? How powerful should executive power be? What did Madison mean in Federalist 39 when he assured the Antifederalists that the Constitution set up a system that was “neither wholly national nor wholly federal?”

Hamilton argued in Federalist 17 that local and state governments would enjoy a closer attachment from citizens – “the people of each State would be apt to feel a stronger byass [sic] towards their local governments than towards the government of the Union…” Brutus, in contrast, argued that the consolidation of government would “annihilate” the state governments. Ginsberg and Bachner demonstrate that Brutus may have been correct insofar as their original survey data show that US citizens are much less familiar with state politics. Further, their findings bear out the Federalists’ concern that state governments, because of their small size, would be dominated by interest groups. Their research quantifies the relative and interactive influence of (1) legislatures’ institutional strength, (2) state interest group activity and (3) citizen engagement on the likelihood that state legislatures will deliver positive results. The findings reveal that state legislatures are highly responsive to interest groups, particularly when civic engagement and institutional strength are low. They conclude that what is needed is a renewed focus on civic education and greater media coverage of state governments to provide counterweights to the influence of special interests, particularly when a state legislature lacks institutional capacity.

Hill returns to Madison’s argument that “great and aggregate interests” would be the purview of the national government and “local and particular” matters would be left to the states. Yet, as the Antifederalists’ fears that the state governments would be subsumed and “consolidated” under the national government has largely taken place, the federal government has been left crippled and the state governments stretched thin. Hill locates within the Constitution a potential solution in Article 1, Section 10’s compact clause, which could relieve pressure on the political system by reviving federalism in a new manner. Her paper analyzes the types of compacts that already exist, as well as ways Congress might encourage more regional cooperation. In the past, Congress instigated particular regional efforts, such as the Tennessee Valley Authority and Chesapeake Bay Program. Today, Congress could create a national infrastructure bank with an obligation to favor multi-state efforts. Currently, states often compete for federal dollars or private sector investments against each other. This encourages a race to the bottom in terms of outcomes and increases the likelihood of duplicative efforts. The Constitution’s compact clause could provide the adaptive mechanism our democracy needs to create more meaningful intergovernmental cooperation.

Wolfson examines three areas of the Constitution’s design that the Internet has largely rendered ineffective regarding how citizens and political leaders receive, share, and process information, as well as how they participate in politics, including political debate. The Internet has had this effect by exposing and nullifying certain embedded assumptions that enabled the Constitution to work. Wolfson's paper looks at three areas: First, Madison’s remedy for the dangers of faction in the extended sphere of the republic; second, the First Amendment’s free speech clause as a vehicle for seeking the truth and further educating citizens; and third, the separation of powers as an antidote to the now seemingly irreversible rise of executive power. Her paper seeks to demonstrate that the new digital technologies -- the Internet, including social media, Google, Twitter, Facebook, Big Data, blogposts etc., have played a key role in disarming the Constitution’s checks against populism. Today, armed by the Internet, the people can leapfrog over the filtering mechanisms of constitutional governance to the immediacy of democracy itself.

Drake examines the constitutional effects of proposals to replace the Electoral College with a national popular vote.

By focusing on these four areas, the panel will help us to better appreciate the political theory behind the Constitution as well as the inherent limits of the Constitutional design in light of new political, historical, and technological developments.

Sub Unit

• DIVISION 28: Federalism & Intergovernmental Relations

Individual Presentations

• What Drives State Legislative Activity? - Jennifer Bachner, Johns Hopkins University; Benjamin Ginsberg, Johns Hopkins University

• “Extend the Sphere:” Interstate Compacts and Regional Governance - Kathy Wagner Hill, Johns Hopkins University

• How Technology Has Uprooted Embedded Assumptions in the Constitution - Dorothea Israel Wolfson, Johns Hopkins University

• The Presidential Popular Vote: A Threat to the Federal Constitutional Order - Ian J Drake, Montclair State University

Chair

• Benjamin Ginsberg Johns Hopkins University

Discussants

• Ken Masugi Claremont Institute

• Holly Brasher