I believe that the separation of powers, the lines of division, are essential to the protection of liberty and the maintenance of stability in our system. Indeed, I view the current mess in Washington as further proof of the genius of Madison and why those lines of separation have to be maintained. To quote Robert Frost, “good fences make good neighbors.”
So I found myself looking more closely at the concept of structure and that took me to architectural theory. There I found a strikingly parallel discussion to the one started hundreds of years ago by Madison and his contemporaries. I was particularly drawn to the theories of how structure influences behavior in so-called “deterministic designs.” How we structure things influences not only how people move, but how they relate to each other—we relate differently in an open room than a room that is divided. Winston
Churchill said, “There is no doubt whatever about the influence of architecture and structure upon human character and action. We make our buildings and afterwards they make us.” Churchill, as usual, was incredibly insightful.
It is time to return to basics and consider the role of structure in our constitutional system. I believe that the Framers viewed our tripartite system as a type of deterministic architecture. It sort of funnels action and energies; it structures how we relate to each other. It forces us to deal with each other in a way that brings stability and dialogue. That’s why this functionalist approach is so dangerous. We’re removing these barriers from the design, and the result is chaos. The result is a series of muscle plays between presidents and Congresses. The courts have removed themselves from these debates. We have a lack of stability, but we also have a lack of movement. Because the president can simply go outside the system, he doesn’t have to negotiate with Congress. He doesn’t have to compromise. It not only fuels partisan brinkmanship but poorly crafted laws and regulations. For example, by any measure, the Affordable Care Act was a uniquely bad piece of legislation when it was passed. It was filled with conflicts, gaps, and errors. Even Democrats, I think, will tell you privately that it was a fairly raw piece of legislation. Why? Because it never went through a bipartisan scrubbing, and negotiation, and compromise. It was a muscle play. And the result was a uniquely bad piece of legislative work.
Madison believed that by tapping into human emotions, tapping into this tendency toward factions, playing factions against each other, he had achieved a stable constitutional system for one of the most pluralistic nations on Earth. It was in fact the system that we need today—just as we needed it then. However, we lost faith in the values that support our Constitution. The branches themselves are no longer fighting for their institutional integrity, as he expected. When you look at those members applauding the president in his pledge to go it alone, you realize how far out of faith we have come