The Healing Constitution: Updating the Framers' Design for a Hyperpolarized Society

Abstract

The genius of the Framers lay in identifying and systematically planning for the known pathologies of democratic government. That said, most of their evidence was limited to Greek and Roman history. This gave little warning of the disastrous polarization that would destabilize European mass democracies over the next two centuries. This paper asks how the Framers might have extended their design had they understood these dangers. The paper starts by noting that the well-known “median voter theorem,” which holds that successful American political parties must position themselves near the center, depends on very special assumptions about how public opinion is actually distributed. This implies that American politics can and probably will behave very differently as polarization increases. This paper presents a typology of possible polarizations, and argues from both theory and history that each is associated with its own unique political style. Significantly, only some of these styles favor consensus politics. Others are confrontational, with extremists deliberately sabotaging government to coerce opponents. Recent government shutdowns are an extreme expression of these tactics. One peculiarity of coercive politics is that it depends at least as much on political passion (“intensity”) as raw vote totals. Asking whether such politics are democratically legitimate necessarily forces us beyond the familiar language of one-man-one-vote (“OMOV”) theories that count all votes equally. This philosophical question also has a practical side. After all, no real government can go on passing laws that increase public anger forever. The paper develops a simple baseline model of intensity-weighted voting and asks how familiar American rules like supermajorities, presidential vetoes, and filibusters have modified OMOV to avoid oppressive outcomes in the past. In doing so, the paper relies heavily on European historical precedents and ask how these might change in American circumstances. The paper concludes by arguing that coercive politics, while sometimes pathological, is an essential tool for measuring and accommodating voter intensity. It follows that reform should aim less to suppress coercive methods than to make them less costly. Suitably reformed versions of government shutdowns, supermajorities, sunset legislation, regular order, and stiffened rule of law incentives offer the fastest path to restoring cooperative politics.