A week before the 2012 presidential election, I had the opportunity to speak with a former senator. I asked him about gridlock. I wondered what he would say to my law students who had lost hope in the legislative process because of the gridlock that defined the 112th Congress. He told me that they had good reason to have lost hope. He said that he conceived of the legislative process as a target; that the center of the target represented the areas that were most important to the country and the likeliest ones in which bipartisan agreement could be reached; and that the Patient Protection and Affordable Care Act ("ACA" or "Affordable Care Act"), (1) in which he said that President Obama had invested so much time and capital, was on the periphery, if not the outside, of the target. He explained that the ACA exceeded the scope of congressional power. He explained that opposing the ACA should be the top priority of legislators and citizens. When I asked him what issues were at the center of the target, he initially did not respond. After I politely pressed him for an answer, he eventually said that there was nothing more important than opposing the health care bill. For him, gridlock had become a constitutional necessity.
The former senator's position on gridlock is hardly unique. Indeed, more than a year before President Obama's re-election, Antonin Scalia, the longest serving justice on the current Supreme Court, told the Senate Judiciary Committee that, "Americans should learn to love gridlock.... The framers (of the Constitution) would say, yes, 'That's exactly the way we set it up. We wanted power contradicting power (to prevent) an excess of legislation." (2) A few weeks after the 2012 presidential election, Justice Scalia repeated the same message to a packed auditorium at Princeton University, adding "God bless gridlock." (3)
This kind of praise for gridlock, coupled with the fact that the last Congress was the least productive in memory, has led many people--both before and after the presidential election--to worry about whether gridlock has become either a permanent fixture, or a reflection of a serious defect, in our constitutional system. Is the gridlock we have witnessed over the past two years something to applaud, as Justice Scalia suggests, or does it reflect some serious defect in the Constitution, the current composition of Congress, the design of the legislative process, or some combination of these things? To what extent is gridlock not just a constitutional virtue but also a constitutional necessity? To what extent does fidelity to the Constitution require embracing or rejecting gridlock?
While these and other similar questions motivated this symposium on constitutional gridlock, I do not believe that they are the right questions to ask. The critical question is, however, not whether gridlock is a constitutional necessity, virtue, or problem. If gridlock protects minorities, can it not also hurt them? If gridlock actually is a good thing, does transcending it produce harm? What does overcoming gridlock signify? Is it likely not the case that the failure of gridlock means that legislators somehow have failed minorities--or does it? The glorification of gridlock misses the point, perhaps deliberately so. After all, the framers did not design a constitution in which gridlock was the objective. The Constitution makes gridlock both possible and inevitable, but the purpose of the Constitution is not merely to allow gridlock. In fact, the Constitution makes federal lawmaking difficult but not impossible. Justice Scalia is thus only half correct: We should appreciate not only the salutary effects of gridlock but also its possible harms as well as what it means to say, as Justice Arthur Goldberg famously said in United States v. Mendoza-Martinez, (4) that, "while the Constitution protects against invasions of individual rights, it is not a suicide pact." (5) The most important question is whether Justices Goldberg and Scalia can both be right and, if so, how? …