Fight with Cudgels, by Francisco Goya. Museo del Prado, Madrid / Wikimedia
To keep the government from doing bad things, James Madison and the other supporters of the Constitution proposed relying not so much on written prohibitions as on checks and balances. Other governments had used checks and balances between the social classes. The Framers proposed using them between the branches.
It was a daring idea. The aim was not to abolish conflict, but to institutionalize it. We were to rest our hopes for the common good not on getting along, but on fighting fair.
For a check is a kind of weapon.
But the idea of a balance based on fighting fair raised a profound question, which the supporters of the new Constitution never answered, or even, so far as I know, addressed. The permissible checks and balances are themselves spelled out in written rules. So if written rules are nothing but parchment barriers, why shouldn’t we pronounce the same damning verdict upon those rules? Aren’t the written sentences that spell out the permissible checks and balances also just parchment barriers? What is to prevent a political player from going outside the rules completely, fighting dirty instead of fair, competing with the others by unconstitutional means?
The only possible answer is that the Framers thought they had drawn up such good rules that each political player would find it in his interest to keep playing by them. If he did play by them, he would win some, lose some. If he didn’t, he might, conceivably, win everything — but it would be much more likely that he would lose everything. So he would think it more to his advantage to stay within the rules than go outside them.
This is not always the case. From time to time, situations arise in which some players think – correctly or incorrectly – that they have less to lose by playing outside the rules than by playing within them. And so they do play outside them. When this happens, we have a Constitutional crisis. That is what is happening now.
Of course, to defuse Constitutional crises, we have other Constitutional mechanisms. The failure of certain checks and balances is compensated by other checks and balances. But if they fail too, a Constitutional crisis can go on for a long, long time.
If it goes on for too long, then the side that first began playing dirty may become more and more desperate, partly because it persuades itself that victory is almost within its grasp, partly because the consequences of losing now would be unthinkable. Consequently, it throws caution to the winds, violating the rules more and more gravely and openly.
The more it does so – and this, I think, is what all men of good will must remember – the more frantic and furious the other side may also become, so that it begins to wonder whether it ought to play dirty too. Once it reaches that conclusion, both sides come unhinged, losing even what little was left of their principles.
Not even those who do play dirty want the populace to turn against them. Therefore, even the most extreme acts, short of assassination, are dressed in the garments of legitimacy. This is an easier set of clothes to put on than one might think, because few citizens understand the Constitution anyway. It is hard enough that checks and balances are so complicated, and therefore confusing. Making matters worse, those who play dirty have a deep stake in making the Constitution as baffling as possible.
It took the Romans years to realize that they had lost their republic. By that time they didn’t want it any more.
J. Budziszewski is a Professor in the Departments of Government and Philosophy, University of Texas at Austin. This article has been republished with permission from his blog, The Underground Thomist. Check out his just-back-in-print books, Natural Law for Lawyers and Evangelicals in the Public Square.