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Constitution Check: Is the Senate due for a Madisonian revival?

August 7, 2012 by Lyle Denniston


Lyle Denniston looks at the likelihood of Tea Party senators in the next Congress, and what it could mean for the age-old arguments about the role of government.

The statements at issue:

“Ted Cruz’s victory in the Texas Republican runoff for the U.S. Senate nomination is the most impressive triumph yet for the still-strengthening Tea Party impulse….The Tea Party stands…with Madison, the most intellectually formidable Founder.  He created, and the Tea Party defends, a constitutional architecture that does not thwart democracy but refines it, on the fact that in a republic, which is defined by the principle of representation, the people do not directly decide issues, they decide who will decide. And the things representatives are permitted to decide are strictly circumscribed by constitutional limits on federal power.”

—George Will, syndicated columnist, in The Washington Post on August 2, in an article titled “Texas’ Ted Cruz gives tea party a Madisonian flair”

“The easy Republican primary victory in Texas of Ted Cruz…virtually assured the latest Tea Party candidate a seat in the chamber next year.  And he will not be alone when it comes to those backed by the movement…Among 17 contested Senate races and in Texas, more than half a dozen of the Republican candidates—or those currently running ahead in their primaries – are Tea Party-embraced.  The infusion of new conservative blood could alter the complexion of the Senate…”

—Jennifer Steinhauer, in The New York Times, on August 1.  The story was headlined “Tea Party Aims to Apply Its Touch to the Senate G.O.P.”

We checked the Constitution, and…

Perhaps the longest-running debate in America’s constitutional history has focused upon the division of power between the states and the national government.   Indeed, the Constitution was made possible only because, in the Great Compromise at the 1787 Convention, the delegates accepted James Madison’s core notion that power should not be concentrated at any one point in government, lest liberty and freedom suffer.

Madison, of course, clearly favored the creation of a strong national government after the debacle of the tragically weak Articles of Confederation.   But he never wavered from the view that the national government he was helping to create had to be reined in.  While in Congress in 1792, he wrote to a fellow Virginian: “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one.”

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

From those origins, America’s constitutional dialogue has never strayed very far from an exploration of what James Madison would say, if he were to return to lend his voice to this or that historic moment, whether it be a moment of crisis or one of opportunity.    It is obvious, since the rise of the “Tea Party impulse” (in George Will’s useful phrase), that another of those moments has arrived and America is once again debating whether government is too dominant in the lives of the people.

Starting with the congressional elections in 2010, sweeping the first wave of the Tea Party’s favorites into the House and Senate, the demand for “limited government” has shown no signs of losing its fervor.   Ted Cruz’s victory in Texas this month, in fact, is just the latest of a string of triumphs for those political forces, and they seem sure to have an influential bloc of their preferred candidates entering the Senate in January.

The question will then arise, however, over what that will mean for the process of governance.  Will the Senate be more, or less, capable of getting something done?  Will the dividing lines between the parties continue to be an almost unbridgeable chasm?  Will the newly energized debate over the size of government be carried on with civility, or rancor?   Will ideological purity – on either side of the aisle – continue to regard compromise as betrayal?

The Constitution cannot provide answers to those questions.  The First Amendment has provided the political condition that allows for the rise of a movement like the “Tea Party,” but it does not guarantee how such a movement will conduct itself if it prevails at the ballot box.  The architecture of the Constitution gives voters the key role in placing people in Congress, but not in forcing them to be productive lawmakers.  The Constitution gives each chamber of Congress the authority to write its own rules of procedure, but does not guarantee that those will never produce gridlock or inaction.

At some point, the Constitution – almost as a matter of faith – stands aside and leaves it to those who have won elections to choose how they will perform in their representative capacities.   If they have won legitimately, without chicanery or skewing the process, they will be allowed a time before another election can hold them to account, so it is very much up to them what they will do with that time.   They can take the easy sloganeering of the political campaigns into office with them, and use that in the pretense that it is reasoned discourse.   Or they can take the option of earning the trust that the voters – and the Constitution – handed to them.    They just might make James Madison, in his heaven, proud of what they have done with his legacy.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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