RealClearPolicy Newsletters: Original Articles

Our Unwritten Constitution

Our Unwritten Constitution
AP Photo/J. Scott Applewhite, File

Dear Reader —

Many of the norms that govern the day-to-day machinations of our national politics, from our party system to the parliamentary rules that shape congressional processes, do not flow directly from our Constitution. They flow, instead, from custom and convention — a kind of unwritten constitution that animates and enables us to enact the principles of our country’s founding document. Perhaps a defining feature of our current political moment is the erosion of these norms. But no single party, person, or branch of government deserves all the blame; there’s plenty to go around.

One casualty of our norm-flouting politics is so-called “regular order.” Regular order refers to the ordinary method for proposing and passing legislation, with all the steps and checks and balances that involves, from floor debates, amendments and markups to filibusters and up-or-down votes. Regular order is both inefficient and bipartisan, designed to preserve the voice of the minority; it requires compromise. No surprise, given the political climate of the last decade, that Congress has moved away from it. Nowadays, congressional majorities find ways to circumvent these conventions — in an effort to reach partisan policy objectives, as John McCain lamented in a much-discussed floor speech earlier this summer.

A case in point is the parliamentary procedure known as reconciliation, originally intended as a way to expedite budgetary legislation, under certain conditions, without fear of a filibuster. It has since become a way for members of the party in power — especially if they lack a filibuster-proof majority — to circumvent the regular legislative process and thereby avoid the push and pull of bipartisan negotiations. This was the strategy behind the Republicans’ repeal-and-replace effort.

Why did it fail? Because while reconciliation allows a party to go it alone, it also demands a high degree of conformity within the party — something uncharacteristic of the current GOP — and this proved to be the sticking point in the Obamacare negotiations. More generally, Congress’ sparse record of legislative achievements over the past decade — including the Obamacare failure — belies the widely held assumption that circumventing regular order is the way to “get things done.” Ironically, our increasingly apparent divisions could wind up highlighting the inadequacy of this strategy. 

Will Congress heed Sen. McCain’s call for a return to regular order when it comes back from recess? It’s unlikely, given the degree of polarization inside and between both parties. And Republicans will find it hard to resist using reconciliation in the effort to tackle tax reform — an issue around which there is more consensus within the party. 

Ultimately, though, if Congress is to accomplish anything of lasting substance — to say nothing of reestablishing its constitutional position as the first branch of government — it may have to return to its former, deliberative — and sometimes even bipartisan — ways.

These are some of the many issues taken up at RealClearPolicy over the past week. Below you will find just a few highlights.

— M. Anthony Mills, editor | RealClearPolicy


Donald Trump’s Identity Politics. In The New York Times, Thomas B. Edsall contends that while Trump has abandoned many of his populist campaign promises, he has “kept his partially veiled promise to focus on white racial essentialism.” 

Taking Bannon’s Economic Nationalism Seriously. The American Prospect’s Robert Kuttner makes a case for “progressive economic populism.”

What Are Trump’s Economic Priorities? In our own pages, Jeffrey Kucik warns that the administration’s trade-policy rethink could weaken the economy and undermine the president’s negotiating power.

Trump’s Policies Will Devastate the Midwest. In The Washington Post, John Austin and Steve Tobocman contend that Trump’s immigration policies will harm the regions of the country that support him most. 

Digital Rights Don’t Stop at the Border. Also in our pages, Alan McQuinn urges Congress to extend “constitutional protections against unwarranted searches of digital devices.” 

A GOP Reform Agenda: What Might Have Been. In National Review, James C. Capretta, criticizes Republicans for squandering a unique opportunity to pass conservative legislation. 

Grand White Party vs. Grand Middle Party. In Slate, Reihan Salam argues Steve Bannon is “charting two different” and irreconcilable “courses” for the Republican Party.

Income Diversity Is Key to Improving Education. In RealClearPolicy, Robert Cherry takes issue with standard explanations of why schools in high-poverty black neighborhoods are lagging behind.

The Simultaneous Exercise of Two Rights Is Constitutional. For Library of Law & Liberty, John O. McGinnis takes issue with the ACLU’s decision not to defend the “First Amendment rights of those who carry firearms to their protests.” 

Secure the Grid Now. Also in RealClearPolicy, James Cunningham asserts that securing the U.S. energy grid should be a top priority for the Trump administration.

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