Liberty, Prudence, Imperfection, and Law

“Conservative ‘Insurgency’ and Progressive Non-Constitutionalism,” By Bruce Frohnen

Newt Gingrich. Photo by Gage Skidmore – Flickr. Licensed under CC BY-SA 2.0 via Wikimedia Commons.

“Republicans have become more an insurgency than a major political party capable of governing.”

 The above quotation is taken from an interview with political scientists Thomas Mann and Norman Ornstein published on the website Bloomberg View. It sums up the liberal establishment view of “insurgent” conservatives seeking to replace congressional leaders with people more willing to confront the Obama administration. It also sums up the standard view of the current Republican leadership. According to Mann and Ornstein, current Republican leaders, and even their own predecessors such as Newt Gingrich, have imperiled democracy by creating irrational and unwonted expectations among their (extremist) constituents concerning what can and should be done to change the course of national politics.

The key political phrase used by Mann and Ornstein since at least 2012 is “asymmetric polarization.” By that phrase they mean the supposed lurch to the right on the part of Republican members of Congress. Even the glaring shift to the left indicated by the rise of avowed socialist Bernie Sanders (the second biggest fundraiser in the current presidential race after that other person of the people, Hillary Clinton) is attributed, by these gentlemen, to the influence of the rightward lurch supposedly instigated by the likes of Gingrich.

On the Democratic side? “Nancy Pelosi is a practical politician who could never embrace norms that threaten the normal functioning of government, whatever its size.” And here we see Mann and Ornstein’s raison d’être: maintaining “the normal functioning of government whatever its size.” Apparently there is room for some debate over the size of government or, more likely, the size of the budgets of particular agencies. But nothing, including disagreement over the proper size and role of government, can be allowed to threaten its “normal functioning.”

What is the normal functioning of government for which deep disagreements over its scope and purposes are to be sacrificed? It is quite clear what Mann and Ornstein believe this normal functioning is not—it is not any shutdown, however partial or temporary, of the federal government. Excoriations of the partial shutdown earlier in Obama’s presidency still reverberate through our political class. But what was so terrible about that shutdown? Certainly it backfired on Republicans, who learned nothing from the bungling of Newt Gingrich during the earlier shutdown, during which Bill Clinton showed his usual political cunning and lack of concern with basic honesty by shutting down the national parks and otherwise causing as much pain as possible to the general public without instituting even the most obvious economies, thereby making Gingrich and his party out to be veritable Scrooges. In neither case did the sky fall. Instead, the Democratic incumbent manipulated a willing press to cause panic and inconvenience among the electorate.

History may show a government shutdown to be a bad choice of tactics for Republicans, at least until and unless they come up with a way to prioritize federal spending under straightened circumstances. It certainly shows that it has been foolish on their part to continue enacting vast, broad funding bills that allow the president to, in effect, require spending on certain items or shut down the government and successfully blame Congress for the resulting inconvenience. It hardly shows either the goal or the result of that tactic to be catastrophe. Yet Mann and Ornstein continue to portray any attempt to put genuine pressure on Obama to change any of his policies as inherently irresponsible and destructive. Why? Could it be that they simply prefer Obama’s chosen policies to their alternative? This might be overstating the case, for the invective Mann and Ornstein level at conservatives bespeaks a deep, systemic commitment to current presidential policies that will brook minor budgetary differences, but no genuine opposition.

It is the logic of Progressivism that Mann and Ornstein seek to defend as the unquestioned center of any well-functioning government in the United States. That logic demands an activist federal government that sets the nation’s agenda. Moreover, by its lights a strong president must be in charge of setting governmental priorities for the nation, and the Congress must accept that its role is to forge compromises among its members based on the president’s agenda. Normal functioning means ruling in the full sense of “conducting the people’s business” through an extensive and eventually seamless administrative apparatus whose smooth functioning has been rendered essential to public life.

The political bias inherent in the Mann-Ornstein “asymmetric polarization” thesis should be obvious—though for those whose continued enjoyment of dominance in our system depends on demonization of any real opposition it cannot be admitted to be so. Bernie Sanders may be “a bit” extreme for Mann and Ornstein in that he openly admits to being a socialist. But on this view his heart is in the right place, and any extremism is Republicans’ fault for becoming unpleasant. And the unpleasantness itself is rooted in the uncouth attempt by conservatives to stop progress.

Progress means, of course, ever-greater equality and security provided by an ever-more-powerful central government committed to an expanding welfare and administrative state. As government has acted to transform society, undermining essential institutions like the family with its welfare policies and local associations through federal usurpation of their roles in self-government, the only role left for conservatives that Progressives have allowed legitimacy has been that of urging caution in the speed of change. “Asymmetric polarization” occurs, then, when conservatives stop acquiescing in the radical transformation of Americans’ traditional way of life. The response, of course, is the charge of “racism, sexism, and homophobia” putatively intrinsic to that way of life. But then, if it was so awful that its abuses could not be addressed without construction of a vast, transformative central state, those doing the transforming might at least have done Americans the courtesy of admitting that they found their own tradition abhorrent before claiming to do the people’s will within the halls of power.

The ideology of progress not steady, normal functioning of any given governmental system is at the heart of Mann and Ornstein’s vision. They are willing to undertake quite radical measures to serve the machinery of progress. Take for example, the solution held forth for our current deadlock:

we have to try to change the campaign finance system, enlarge the electorate, change the nature of the House through redistricting and maybe even push for more substantial changes (like multi-member or at-large districts) and create a new public square. All of these are long-term battles.

This is hardly a push for normality. It bespeaks a determination to change the rules of the game as needed, including by the radical expedient of trashing our system of representation, with its terms explicitly in the text of the Constitution and its roots deep in Anglo-American practice, to root out opposition. Apparently, for Mann and Ornstein, if the current electoral system allows election of “extremists” with the temerity to oppose the march of progress, well, that system must be changed. The system that really matters is not one of representation but of administration. It is, then, policy that matters above all—policy defined as maintenance of an ever-expanding administrative state. The traditions of the people are potential problems for this policy, as is the Constitution itself.

Mann and Ornstein appear to have only contempt for an understanding of our political system as a form of government—that is, as a republic whose structures and procedures are rooted in the clear language of the Constitution. They give grudging praise to that sometime supporter of their system, Senate Majority Leader Mitch McConnell.

McConnell was able in the past to avoid a debt limit breach by creating a rule that enabled the president to raise the debt ceiling and veto a subsequent motion of disapproval, and sustain it with Democrats in Congress—the same kind of mechanism that worked with the Iran deal. But it is a sad commentary on our dysfunction that we need such work-arounds to prevent catastrophe.

One might understand the view that a debt limit breach might be seen as catastrophic. The evidence is sorely lacking for such a view, however. Even were it so, it is at best unclear why the proper solution would be for Congress to cede its constitutional role as originator of legislation to the president so that he might borrow money on his own, tying the government to his own policies and preferences. Yet this is the “work-around” Mann and Ornstein find acceptable to keep the fake money flowing and to which they voice no opposition even in the case of the obviously less crucial Iran deal. The notion that the president should compromise on spending priorities rather than precipitate a debt limit breach merits not even a mention. Administration must not be threatened. Methods for its defense may be “sad,” but the administrative system is what matters.

The sheer contempt for constitutional structure and procedure shown by Mann and Ornstein, who for decades have presumed to lecture students, professors, and policymakers alike on the workings of Congress in particular, is breathtaking. The most basic premise of our Constitution is that those in power must follow set rules in wielding that power—rules concerned in particular with the ways in which policy preferences are made into law. The casual reversal of the legislative process, by which Congress and only Congress is in express terms empowered to pass legislation which the president has the choice of signing or vetoing, constitutes craven opportunism of the worst kind utterly destructive of the rule of law. In the name of “keeping the government running” it makes a mockery of the separation of powers and hands to one political official—the president—essentially unchecked power to initiate legislative action. It reduces Congress to a passive, secondary role in which it may on rare occasions veto a particular presidential action.

This is not the government set forth in our Constitution. It is government by presidential decree. Such a government may provide many goods to its clients, its administrators, and enthusiastic students of what Vincent Ostrom called “monarchical administration.” It is not a government suited to a free people. Given such facts, it is not extremist, it is in fact a moral imperative, to resist further entrenchment of such a government and, yes, to be so “retrograde” as to seek its replacement by the separation of powers, checks and balances, and even the limited, enumerated powers established by our Constitution.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

2 Responses to ““Conservative ‘Insurgency’ and Progressive Non-Constitutionalism,” By Bruce Frohnen”

  1. Dennis

    Great essay! I enjoy your articles immensely. The media seem always willing to ignore the fact that it takes both branches of government to negotiate and debate, not one to dictate terms to the other. I actually envy the Brits, whose representatives get to question the PM for all to see, and debate is actual debate, not these dog and pony shows we trot out only at election time.

    • gabe


      Great point about “Question time” in Parliament. Can you imagine the Big 0 (that’s zero) submitting to something like that. His shallowness and his third rate intellect would be on display for all to see.

      And you are right – these are not debates – they are “sound bite” opportunities. He who has the best phrase-maker wins!!!!


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