Having taken control of the House of Representatives, the Democrats face an enormous and perhaps insurmountable political barrier to achieving their agenda. It’s not the Republicans. It’s the Constitution.
“Kill the Constitution” would not be a winning campaign slogan for the Democrats, and you will rarely hear an American politician running against the Constitution as such. But it is the Constitution and the American constitutional order — not Senator McConnell — that currently vexes them.
At the time of this nation’s Founding, there were 13 distinct communities that had been colonies and had become states. Some of them were urban, industrial, and densely populated; some of them were rural, agricultural, and sparsely populated. They had religious differences (we sometimes forget that while the federal government is now forbidden from creating an established church, the states did have official, state-supported churches), economic differences, and what turned out to be an irreconcilable difference on slavery. The smaller states were hesitant to join the Union without protections and guarantees that they would not be subjected to a vulgar democracy in which their interests would be swamped by those of the more populous states.
The compromise that emerged from that situation is what is sometimes known as “dual sovereignty.” The federal government and the states each have their own sovereign powers, which sometimes overlap: That is why the terrorist Terry Nichols, for example, was tried both on federal charges and in Oklahoma on state murder charges. Each sovereign has the right to make its own laws and to enforce them. The principal role of the federal government was, under this understanding, to take responsibility for issues that cross state lines or that concern the union of states as a whole: interstate commerce, foreign relations, national security, etc. There have been more and less expansive interpretations of what constitutes a genuinely federal issue, with conservatives historically leaning toward a more restrictive view of the federal government and progressives looking to put the federal government into the service of national economic-planning programs, national infrastructure projects, and the like. These interpretations have never broken down neatly along party lines or political affiliations: The Republican party of President Lincoln’s time had a wing that was recognizably conservative in the contemporary sense of that word, but President Lincoln, like his fellow Republican President Eisenhower a century later, was very much interested in what he called “improvements,” meaning mostly what we now call “infrastructure,” canals and railroads in one century and the federal highway system in the next. These projects were thought of as being national in the sense that they would improve the economic productivity and public life of the nation as a whole by enabling the easy movement of goods and people — and, if necessary, soldiers: It’s the Dwight D. Eisenhower National System of Interstate and Defense Highways.
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