In my continuing journey through our constitutional amendments, I’ve reach number eleven. The first one completed after the Bill of Rights, it was passed in 1794 and ratified about a year later. The text reads:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
As amendments go, this one is rather boring. Frankly, it is a little difficult to understand without being a lawyer. Even then, there seem to be no less than four different interpretations of what it actually means. Long story short, it has something to do with “state sovereign immunity,” and focuses on the legal rights and prerogatives of states in our national union.
From this perspective, states are in some sense independent from one another. Fine. This furthers my discussion of state’s rights from last week. And, just as then, I think there is some value in considering divided power at different levels of government. Seems like a good idea to me. All of this makes sense, especially in the early years of the Republic as newly joined states were concerned about their rights vis-a-vis each other and the national government.
I’m not going to speak much more about the Eleventh Amendment, except to say that its existence reminds me that the Constitution was a document with a diverse set of authors that sought to please a wide range of constituents. Further, its kind of construction tells us that American democracy is in some sense an experiment…a plan that seemed to make sense at the time. Historically speaking, it was as much a political effort to please a lot of different parties (proudly independent states, for one) as it was a reasoned discourse on government. Even in the latter sense, our system of government was still a kind of educated guess.
Would it actually work? The Founders hoped it would, even as they allowed provisions for its alteration. Did it work? Well, we’re still here. But simple existence ignores the fact that things nearly completely unraveled in the 1860s. The whole issue of states’ independence and rights, while helpful in some sense, also went disastrously wrong in Secession and Civil War. Was this the fault of our government’s founding structure? That’s complicated. I will tell you this: the structure of government isn’t what saved the Union. Only force of arms did that.
Related questions about shape of our democracy and its ability to persist over time have been raised in recent days. The government shutdown (almost certain to blow over soon) has prompted these questions, but they are much deeper seated than that. Taking into consideration something like the Eleventh Amendment and, indeed, the whole nature of the Constitution as an historically conditioned document of political compromise, it makes sense to ask whether its organization of our government can weather all tests that comes its way.
Two articles (here and here) have raised related questions connected to the thought of recently deceased political scientist Juan Linz of Yale. In his work on presidential (as opposed to parliamentary) democracies, Linz felt the unstable power structure contained within such systems invariably led to potentially dangerous problems. As one of the articles puts it,
“In a world with well-sorted parties and little ticket-splitting, the geography-driven differences in voting results for the House, Senate, and president are going to lead to persistent conflicts, in which both sides feel they have an electoral mandate to stand firm and there’s no systematic way to resolve the issue. That’s very bad news for America, and nobody knows how to stop it.”
Understand me: this isn’t specifically about Barack Obama and John Boehner any more than it is about George Bush and Nancy Pelosi. It is, from the perspective of Linz, about the presence of multiple elected and legitimate “leaders” in our government, especially when one of them is ostensibly in control of the military.
Alarmist, you might say. And I think you’d be right if we were talking about our current shutdown crisis. Our leaders, as they almost always do, will find some way to compromise at the last minute. Besides, as a friend has recently shown me, there have been a number of shutdowns of various intensity over the past forty years, and we’ve survived all of them. But: consider this. In the run-up to the Civil War, tensions ran high in our government. At times of peak intensity, compromises were made that helped paper over differences between the sections of our nation even while they didn’t solve underlying problems. Time after time these compromises were made, and our system of government persisted.
Until the last compromise had exhausted itself and our nation nearly ripped itself apart.
I’m not saying this is necessarily going to happen in our generation. We’re still some distance from that. What I am saying is it is a possibility. The kind of partisan ultra-ism and brinkmanship we see today has risen to a signficantly high level. As during the 1840s and 1850s, the question will be whether our system of government–the government established in the “best guesses” of the Constitution and its amendments–can contain these pressures. If so, we will persist. If not, and barring potentially drastic changes, we may be heading down a dangerous road.