How the system got broken, and why it can’t be fixed

Whatever happened to the separation of powers?

The system wasn’t supposed to work this way. The Founding Fathers deliberately devised a structure in which someone like Donald Trump—a vain, self-centered, mendacious demagogue—could never become chief executive, and in which the legislature could never be captured by a reckless, ideologically obsessed minority bent on overriding the majority interests of Americans. Those Founders labored to create an independent judiciary that was not captive to any single ideology or party. They carefully crafted a set of checks and balances in which no single branch of government could overpower another, and in which each held its own prerogatives dearly. In doing so, they thought they had provided posterity with a wise, cautious and magnanimous governmental operation that would serve the larger public weal rather than advantage any particular group or party, and that could withstand the gusts of any given historical moment.

It actually worked surprisingly well for 250 years, which is not to say that it didn’t have plenty of hiccups or that special interests weren’t often privileged. But it doesn’t work anymore, and though I am optimistic enough to believe that we will have a new president and Congress someday who will change policies and perhaps set us back on the road to rationality and common decency (“Make America Good Again”), the Trump presidency and the Republican Congress have nevertheless exposed the flaws in the system itself.

The prognosis isn’t good: These flaws are embedded in the Constitution and cannot be repaired without wholesale change, which isn’t coming. These defects are now openly visible for the next demagogue and the next gaggle of political hypocrites and power mongers to exploit. You can forget all the alleged fail-safes. The Constitution was supposed to protect us from this. It was expressly designed to do so. It didn’t.

The system failed because the Founding Fathers did not anticipate anything like the modern Republican Party. On the contrary, they believed that extremism and overweening self-interest of the sort Republicans routinely display could always be quarantined. Were they wrong! Instead of the Constitution circumscribing reactionary populism, reactionary populism has circumscribed the Constitution. That is where we are now. And there is no way out.

The Founding Fathers weren’t naive idealists. They understood the deficiencies of human nature, which is why they felt the need to devise structural defenses against them. “If men were angels,” wrote James Madison in Federalist No. 51, “no government would be necessary.” But men weren’t, so it was. Still, our forebears were comforted by four assumptions that would underpin American democracy—four assumptions that let them believe their Constitution would sustain the new nation.

First, they believed that a national government would attract what John Jay described as the “best men,” men “whose wisdom,” Madison would concur in Federalist #10, “may best discern the true interests of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” In short, they envisioned a government of sagacious men of good will who set aside their own interests for the country’s: the “best and brightest.” Instead, we seem to have gotten the “worst and dumbest.” Examples abound, and this week’s rollout of the new Republican health care plan, which is likely to deprive at least 10 million Americans of health insurance while further enriching the rich is just another vivid demonstration of how the Founders overestimated the quality of future representation as well as our representatives’ dedication to the larger public good. Paul Ryan, the Republicans’ much-vaunted intellectual, doesn’t even know how insurance works!

Second, the Founders separated the three branches of government and assumed that each would check and balance the others as a form of protection against any one branch encroaching on the power of the others. As Madison put in it Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” The basic idea was that if goodwill didn’t ensure good government, a sense of institutional loyalty—even across party lines—would help.

Again, for most of American history that actually worked reasonably well, despite the expansion of the party system and politicians’ growing allegiance to it. In the 20th century, for example, there was arguably no more popular president than Franklin Roosevelt. But when he sought to pack the Supreme Court by adding new justices after the conservative court had ruled much of the New Deal legislation unconstitutional, there were howls of outrage that he had overstepped his constitutional bounds, and when in 1938, he sought to unseat congressmen in his own party who had opposed him, he triggered an intraparty revolt. Institutional loyalty overrode party affiliation, what Madison had disparagingly called “faction,” which is precisely how the system was designed to work.

But not anymore. Establishment Republicans may have griped during the campaign that Trump wasn’t sufficiently doctrinaire for their tastes, but how quickly those congressional Republicans fell in line after the election. Now there is virtually no distance between Trump, Congress and presumably, once Neil Gorsuch takes his seat on the Supreme Court, that institution as well. Separation of powers in a monoparty system is an absurdity because party and power supersede everything else, especially the public good. There is nothing Trump could possibly announce (say, for example, a former president wiretapping him), nothing he or his minions could possibly do (say, consorting with the Russians to tilt the election his way) that would move congressional Republicans to challenge him. We live in a Republican monopoly, and to hell with institutional loyalty or checks and balances. They don’t work.

Third, the Founders assumed that extremism could never take root in the government—not because there weren’t any extremists, but because the system had safeguards against their assuming power. (Not incidentally, Madison also observed, in a prophecy of Trump’s rise, that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government.”) Here Madison relied not on government structures, but on social ones. He thought that the diversity of the country, the sheer number of competing and countervailing interests, would prevent any single faction from riding roughshod over the others, and he adduced the example of religious sects where there were simply too many for one to be dominant.

Again, Madison was just plain wrong, because on one hand, he subscribed to the notion of a public driven in large part by rational self-interest, and on the other, because he didn’t imagine how fiercely extremists would press their cause. He couldn’t have foreseen how modern tools and technologies of manipulation, like mass media, social media, propaganda and persuasion, have coaxed people to forsake their self-interest. We know, for example, that some of the fiercest opponents of Obamacare are those who have benefited most from it.

Madison, then, didn’t foresee that a major party could be hijacked by extremists, as the Republicans have been, or that those extremists would then expunge from the party the very diverse elements that Madison had identified as our democratic safeguard. Or to put it another way, the Republican Party monopolized itself before it monopolized our government. Not even the farmers, small businessmen, Rotarians and Wall Street bankers who had formed the core of the pre-Reagan party saw that coming. About one thing, however, Madison was right: Extremists have no interest in democracy.

And that brings us to the Founders’ fourth and most important assumption. They assumed that those who aspired to power did so to govern; they didn’t aspire to govern to gain power. But what happens when a major party doesn’t believe in government itself? Republicans profess to love the Constitution. They carry copies in their shirt pockets and wave them at every opportunity. But here is the quandary: The Constitution creates the government, and Republicans profess to hate government every bit as much as they love the Constitution. Indeed, the modern GOP not only arose from the forces of extremism—the Manionites, John Birchers and Apocalyptics. It arose from those who vowed to destroy government as we know it—or, as one recent anti-government Republican, Steve Bannon, promised, “to deconstruct the administrative state.”

You can’t blame the Founders for not having anticipated that the government could be taken over by fanatics who don’t believe in government. No document, no system could have offered protection from this.

So kissing the Constitution is really a neat trick to disguise how little the Constitution really matters now, how pro forma it has become, how its assumptions have been savaged. A government that was predicated on goodwill has few practitioners of it and virtually none among the current governing party. A government in which power was subject to checks and balances has virtually none, only party uniformity. A government in which, in the words of one constitutional scholar, it was “almost impossible for a zealous movement to sweep like wildfire . . . and seize control,” has been seized by such a movement. And a government that was designed to provide stability, temperance, deliberation and wisdom is controlled by a party that doesn’t even believe in government, much less those virtues.

Yes, as I said, others will occupy the White House and Congress and even the Supreme Court. But there is nothing they can do to rebuild the structure the Republicans razed when they tore down the Constitution. What is left is the rubble.

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Neal Gabler is an author of five books and the recipient of two LA Times Book Prizes, Time magazine’s non-fiction book of the year, USA Today’s biography of the year and other awards. He is also a senior fellow at The Norman Lear Center at the University of Southern California, and is currently writing a biography of Sen. Edward Kennedy.

3 Responses to How the system got broken, and why it can’t be fixed

  1. why are you wasting your time doing a bio of Ted “Chappaquidik” Kennedy, a spineless man -child whose cowardice caused the death of a woman? And how can you ignore the equally self-serving abuses of power that the Democrats do? lets face it, deep government and the swamp that is Washington bureaucracy will resist any change made by any political party

  2. Isabel Brennen

    Great article.

    • Neil Halliday

      Isabel writes “lets face it, deep government and the swamp that is Washington bureaucracy will resist any change made by any political party”

      “Deep government”?

      How about ensuring good universal public education, so the community can explode libertarian, anarchic (ie small government) mythology such as ‘voluntary co-operation’, and self-interest as the only requirements for progressing the common welfare.