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No, They’re Just Hypocrites


James Joyner makes a valiant but inherently doomed attempt to defend people who have lionized the Tea Party and the Republican opposition to health care, but have now discovered that subsequent to an election new governments should be able to immediately pass their agenda and the opposition should just shut up about it:

While this sounds good on the surface, I would argue that the parallel is not as strong as it might seem.

The United States government was intentionally set up with a series of institutional barriers to democracy, on the theory that we were a collection of states with partial sovereignty and we did not want fleeting majorities to be able to impose their will. Aside from separation of powers, the most notable concession to this was the creation of the United States Senate, which gives each state equal power despite vast differences in population. (Admittedly, this was part of a necessary compromise, with the House being more-or-less democratic.)

State governments, by contrast, typically do not have these sort of institutional barriers because states are thought to be more homogeneous. So, the election of a governor of one party and a legislature of the same party tends to produce rapid, coherent policy adoption.

Um, no.   A few problems here:

  • It should first of all be noted that, as is pretty much always the case, attempts to claim that these disputes are really arcane theoretical disputes about federalism are implausible in the extreme.   This is a substantive dispute; it’s not an argument that protest is legitimate against the federal government but not any state government.   Althouse likes the Tea Party and dislikes the Wisconsin protests because she agrees with the former ideologically and not the latter; there’s nothing else going on here.
  • Even if we pretend for a second that federalism is doing any work here, I don’t think James’s argument can withstand scrutiny.   He borrows Madison’s empirical analysis from Federalist #10 but stands his normative analysis on its head.   It’s true that Madison argued that state polities were more homogeneous.   But, to Madison, this was a problem.   The more homogeneous the polity, the more necessary countermajoritarian checks are, because diversity is its own check.   If you buy Madison’s argument, the Wiconsin protests are if anything more consistent with Madisonian theory.
  • But whatever the theory, we have to examine how state governments were actually set up, and this is where James’s argument becomes especially puzzling.    “State governments…typically do not have these sort of institutional barriers because states are thought to be more homogeneous,” he argues.   But, of course, all 50 states seperate the legislative and executive branches, and 49 replicate the same basic high-veto point structure as the federal government by adding a bicameral legislature.   The Madisionian structure of state governments should not be expected to always produce rapid policy change (and if he doubts that, I invite him to come visit us in Albany for some first-hand analysis of near-permanent gridlock.)    The malapportionment of the federal Senate is the only substantial structural difference (and, prior to the intervention of the Warren Court, many state legislatures similarly ovverrepresented rural factions.)  And the malapportionment of the federal Senate makes the filibuster — which further empowers already grossly overrepresented minorities — less defensible, not more.      And the fact that the obstruction by the opposition in Wisconsin is one-shot rather than systematic also makes it, if anything, more defensible.
  • Lest I be accused of pulling a reverse-Althouse, I’m not saying that this makes the Tea Party/Republican opposition somehow procedurally illegitimate.   At both the state and federal level, people should protest policies they oppose, and using the proocedural tools at your disposal in an attempt to prevent the implementation of politices you oppose is politics.   But nothing of value comes from trying to cloak substantive disagreements in ad hoc procedural arguments.
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