Unilateralism and Polarization: How Changes in Our Structural Constitution Have Caused Political Divisiveness

26 Pages Posted: 20 Feb 2020 Last revised: 23 Mar 2020

Date Written: February 18, 2020


Political polarization is perhaps the great political problem of our time. While it has many sources, one of its most important causes, which has not been previously discussed, is the deformation of our governmental structure. That structure has been transformed from an arrangement where consensus was needed to enact important policy changes to one where the President or the Supreme Court can adopt such change unilaterally.

This transformation has greatly contributed to political polarization. Congress’s delegation of authority to administrative agencies to make policy allows the President’s administration to make important regulations. Because the President represents the median of his party, not of the nation, his agents' decisions normally are more extreme than what would emerge from the congressional political process, particularly when, as is usually the case, the houses of Congress and the President are divided between the parties. Similarly, presidential claims of authority to engage in military interventions and to make substantial international agreements on their own – rather than with congressional authority as the Constitution requires – require no political consensus even on decisions of fundamental importance to the nation. Finally, the Supreme Court’s arrogation to itself of the power to create or eliminate rights also forestalls compromise, infuriating those who disagree with its ukases. These diverse constitutional departures have a common effect: They generate extreme outcomes, promote polarization, and block the dialogue that can lead to fruitful compromise.

Understanding the institutional roots of polarization provides a roadmap to tempering our current discontents. Delegation should be curbed, forcing Congress to make the key decisions. The President's initiation of hostilities and executive agreements should be allowed only if they are swiftly ratified by Congress. The Supreme Court should refrain from creating or eliminating rights, leaving fundamental change to the constitutional amendment process. None of these reforms require us to begin the world anew, but instead to return to tried and tested structures. They would also transform our political culture. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

Keywords: polarization, administrative state, supreme court, presidency

JEL Classification: K10, K30

Suggested Citation

McGinnis, John and Rappaport, Michael B., Unilateralism and Polarization: How Changes in Our Structural Constitution Have Caused Political Divisiveness (February 18, 2020). Northwestern Public Law Research Paper No. 20-02, San Diego Legal Studies Paper No. 20-440, Available at SSRN: https://ssrn.com/abstract=3540554 or http://dx.doi.org/10.2139/ssrn.3540554

John McGinnis (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-3235 (Phone)

Michael B. Rappaport

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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