Brett Kavanaugh’s Supreme Court nomination hearings were an embarrassing and degrading spectacle for America. They were ugly, they were painful and they were shameful. They weren’t simply the result of the year-old #MeToo movement, nor just another symptom of the decline in political norms in the wake of President Trump’s victory. These heated and intense hearings were the reflection of the ongoing war over America’s soul.
This war truly divides American politics today: the struggle is between those who revere America’s past and those who question or disdain it. It is a war that, like binary conflicts of the past, promises to get much worse before resolution can be found.
America’s Founding Fathers recognised how dangerous such divisive binary wars over values could be to the political order. In the Federalist Papers, Alexander Hamilton and James Madison explained how the new Constitution was intended to minimise the dangers. Their arguments remain important today, both in understanding why America has so rarely become engulfed in these types of conflicts, and why it is now teetering on the brink of one.
They identified two types of conflicts that could destroy a state. The first flowed from the economic demands democracy would create. Looking to the ancient Greek and Roman republics, they sought to remove the possibility that a popular majority would try to take the wealth of a rich minority. To this end, the Constitution’s primary author, Madison, insisted on three innovations that remain mainstays of America’s governing structure: representation, bicameralism, and the separation of powers.
The existence of the three reduces the possibility that one single group – what Madison called a faction – could seize control of all the levers of government at once. Representation ensured that a mob could not be whipped into a frenzy to violent action: their will could be exercised only indirectly. Bicameralism meant that a faction had to obtain control of two different electoral bodies, each with its own mode of election, and elected according to different schedules, to obtain legislative power. The separation of powers added a third hurdle: that such a faction would need to win control of an independently elected executive to wield the full power of government. Madison thought that these measures would break the zeal and intensity of a single faction’s desire to dominate, and as such preserve civic peace.
The second type of binary conflict stems from debates over ways of life. If one faction believed that their way was the right way, it could use control of the government to force its views on dissenters. This is what happened in Europe during the religious wars of the 16thand 17th Centuries, when Protestants and Catholics warred incessantly over whose was the one true religion.
Madison and the Founders sought to prevent such a destructive conflict from ever coming to America by removing religion from national politics altogether. The Constitution contains a clause that forbids the institution of a religious test for holding public office; in the United States, simply being a Catholic or a Jew would not bar one from public life.
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