Lisa Miller on Checks and Balances and Other Constitutional Myths

Lucas and I have had many interesting conversations since our first interview one year ago. This is an edited transcript from my discussion with Lisa Miller, recorded in January. We discuss why constitutional veto points should be viewed through the lens of political power, the current discourse around checks and balances and constitutional guardrails, the stories we tell ourselves and share with others about the Constitution, and how federalism impacts public policy and impedes mass movements.

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Lisa: I'm a professor of political science at Rutgers University in New Brunswick. I study American politics, public law, and I've done a lot of work on the politics of crime and punishment. And I'm working on a new book called The Myth of Checks and Balances and the American Democratic Deficit.

Luke: How did you become interested in American political structures and the Constitution?

Lisa: I've always been interested in how ordinary people without access to power and money — particularly marginalized groups and low-income people — try to access government, and how they try to influence policy, processes, and the rules that govern society.

I started in the 1990s studying crime and policing at the local level. I learned throughout that research that there's a very complicated American political structure — local politics, state politics, federal government, different branches of government — that all shape politics and the policy process. So I became very interested in federalism.

I've been going up the ladder of levels of government. I started understanding the American system as something distinctive in how fragmented it is within the many different places where policymaking takes place.

I've also been teaching constitutional law off and on for about 25 years. I started noticing this kind of disjuncture between how my students talk about the Constitution, including concepts like checks and balances, and what I was observing as a scholar about what that means in practice. I pushed my students to think more critically, but I didn't have a lot of literature to point to to help them understand the system better. The gap between the conventional wisdom around American politics and checks and balances, and the research on what that incredibly complex structure means for ordinary people and a kind of mass democracy, is what led me to want to write this book.

Luke: Why do you call checks and balances, states' rights, and the tyranny of the majority “constitutional myths”? This is from your article “Amending Constitutional Myths.”

Lisa: I've used a couple of different terms to describe these concepts, and I'm not sure I've landed on the right one yet. What I try to capture is that these terms are a kind of received wisdom. They go unchallenged. We just sort of accept them as we hear them, and we reproduce them without a lot of questions, without understanding what they mean, or whether they do the things that they're purported to do.

Take checks and balances. What's being checked? Who's doing the checking? We know that really concentrated power in a nation state can be very dangerous, but how do we know that the wrong kind of power is being checked? What is the wrong kind of power, right? What kind of power needs checking, and what kinds of power do we want governments to exercise? Everyone wants the government to do something.

Or take states’ rights. Well, to do what? Why are states important political entities in the 21st century? These are questions that these terminologies and these concepts can’t answer.

And the tyranny of the majority. Well, how do we know the tyranny of the majority from just democratic self-governance? If majorities should win in a democratic system, well, how do we know what tyranny looks like? Why is it the majority we're worried about? Should we be worried about other groups like, like the elites? These terms themselves don't give us any answers. So each term has some fairly obvious questions that don't have any answers.

In the classroom, I would challenge students a bit and ask what's being checked. What do you mean when you say checks and balances? They would say things like, “Unconstitutional actions.” Well, what does that mean? What's unconstitutional? Who decides?

I feel like I was trapped in this checks and balances narrative. I couldn't sort of find a way out. I wanted to answer the question, “Does our system that we think of as this kind of laudable checks and balances system do the things we think it does?”

Luke: You've written about the difference between “constitutional folk wisdom” and the reality of a political system based on what you call “veto exceptionalism.” Especially after Trump's victory, people are constantly talking about “constitutional guardrails.” But why is this focus misguided?

Lisa: If you grew up in the United States, you likely have this kind of civic education understanding of checks and balances. People usually talk about the kind of triangle that we all see in the textbook in high school. There's the president, the legislature, and the courts. I would add another check, which is our bicameral legislature: two houses, not one. I’d also add federalism, the division of power between the central government and the regional governments. We could add even more checks, like the Electoral College, and maybe the filibuster. So there's sort of a whole collection of things. The general idea is that all these different political venues are good because it means that nobody can get too much power.

Now, the concept of checks on power is very important. There's been a fair amount of democratic backsliding around the world, where an aspiring autocrat seizes power in some way and then starts to dismantle democratic processes. So, checks on power are important. In my book, I'm very careful to talk about American-style checks and balances.

In the US, we don’t talk about other kinds of checks and balances, such as civil society, a free press, protests, religious groups, and NGOs — these are all really important parts of checking power. Democratic majorities are a check on power, too. They're a check on elite power, on the power of the private sector.

Another way to think about checks and balances is as vetoes. Checkpoints as vetoes. If you look at the United States, we have a lot of vetoes. Three different bodies have to agree for change to happen. That’s very different from, say, a parliamentary system where a party gets elected with a majority and they just govern. Then, of course, there are federal courts. There's also the opportunity for a court to step in. Or maybe states resist.

I use the term “veto exceptionalism” when describing the US because we have so many veto points. Now, the conventional wisdom might say that this is a good thing because checks keep concentrated power from occurring. But is that how the system works? Or do our checks facilitate concentrations of power? Executive power has expanded massively over the past 80 or so years, especially regarding foreign affairs. Congress has either been unwilling or uninterested in checking the president’s power. The courts have done very little to check executive power. In fact, they further aggrandized the executive.

The checks and balances narrative has no way of talking about concentrations of private power. It assumes that the government is a dangerous source of power, and the private sector is just not part of the picture. But who has access to veto points? Who has access to members of Congress? Who can initiate federal litigation and carry it through to the Supreme Court? Who can put enough pressure on enough senators to sustain a filibuster to block something from happening? It's not ordinary people. It's the powerful economic elites, the people with connections, with money, with resources. It's organized groups of businesses and corporations.

Luke: Daniel Lazare talks about our political system as one with lots of alleyways and pathways and sort of dark corners and side pockets. Each one of those is an opportunity for an interest group to come in.

Lisa: We don’t have a mechanism for checking concentrations of private power. We don’t have small-d democratic politics. Healthcare is a fantastic example because it's something Americans across the political spectrum are concerned about. But powerful elites find ways to minimize, erode, kill off, quash, and just destroy it. Americans are understandably upset that nothing seems to change, no matter who they vote for. The common narrative about how our system works doesn't give us any way of understanding why elites are powerful.

With my book, I want to speak to political scientists and a wider audience. But in terms of the political science audience, we often tell these stories about health care or minimum wage with the backdrop being this convoluted system. But I think we need to pay a little more attention to the political system. It can’t be the backdrop. It should be front and center. That doesn't mean that other factors don't matter. Change is hard. But we can't overlook the fact that it's incredibly hard to change what Blumenthal and Marone (in their book on healthcare) called the “infernal complexity” of the American political system.

Luke: The political system has been normalized. We have bills fail in the Senate with votes of 53 in favor and 38 against, and no mainstream outlet bats an eye.

Lisa: It drives me crazy. I've been talking a lot with my students about equal representation in the Senate, and that brings up a whole other kind of folk wisdom about the role of states in the American political system.

As I mentioned, guardrails are important. But these generic appeals to checks and balances or constitutional guardrails aren’t very helpful. When we examine the Harris campaign and the Trump campaign, the Democratic message seemed to be more like “Trump's going to break things. He has broken things. But our institutions are strong. They're good. They work.” However, I don't think that resonates right now. People see that something is wrong. Unfortunately, Donald Trump has all these disastrous answers, and he isn’t interested in institutions functioning more democratically. But he identified something people truly feel — and that’s real. So, generic appeals to checks and balances won’t be effective.

Luke: Most responses to Trump not only miss the mark but also obscure what might be causing a lot of the problems to begin with.

Lisa: In some ways, they double down on the problem. “Oh, if we just look to the Constitution, that will save us.” But the Constitution is not going to give you answers to the fundamental questions and problems in American politics. It's a structure, and one that is not serving ordinary Americans very well.

Luke: Where do you see these constitutional folk wisdoms coming from? Why do you see them as so pervasive?

Lisa: I don't think it's by and large some sort of fool-the-public strategy. It's instrumental in many cases, but it's across the spectrum. It has an intuitive appeal, too. For those who want to stop social change, veto points and narratives that validate them are very helpful. The Right has an anti-statist narrative that puts this forward. The Left has its anti-statist narratives, too. Questions of who should be checked and how they should be checked go back to the writing of the Constitution. States would issue ringing endorsements of the new national government when it did things that they liked, and then condemn the “horrors and tyranny of the federal government” when it was doing things they disliked. Understanding checks and balances as vetoes is also not new. Black political actors in the 19th century, labor activists, and farmers — people have understood for a long time that our structure facilitates elite power. The more I dig around historically, the more I feel like, actually, Americans have been trying to overcome checks and balances for about 150 years, at least since the Civil War.

Luke: Is there something about our political system that makes organizing especially difficult?

Lisa: Yes, the constitutional structure affects organizing, too. Look, organizing is hard. But it's especially hard for groups with diffuse interests, such as housing, better healthcare, and raising the minimum wage. It's a little easier to organize if you can offer people some kind of material incentive or if there's some material consequence at stake that's very clear. Interest group scholars talk about “venue shopping.” Go to the venue where you're most likely to succeed. If you want to get rid of gun control laws, you go to states where you're going to find sympathy, etc. That’s effective. But you need money to do it.

But it’s easier when you have money. One of the things that veto exceptionalism does is create spaces where moneyed resources can organize to block popular movements. If you're trying to block something in Congress, you only need one of the trifecta to make it not happen. If you're trying to pass something, you need everything to work. Change would require capturing all of the levels of government. Some people are scared of that, but it turns out that this is why we have some of our most important social policies, such as Social Security and Medicaid. Federalism also balkanizes natural allies from each other. All the layers — local, state, national — make it hard to connect with your natural allies.

Luke: How does the American system of government and its various idiosyncrasies, particularly our style of federalism, act as a barrier to addressing racial inequalities in crime and punishment?

Lisa: The incredibly devastating effects of mass incarceration, and the horrific racial disparities and devastating effects on Black Americans in particular, are the end of a much bigger set of policies and processes. There's only so much police can do to address violence, and yet they become the main strategy we use. One of the reasons for that is because of the incredibly complicated political structure, which makes it hard to address crime prevention in more systematic ways.

We expect local governments to solve all these problems. But we're awash in firearms as a nation, which is not something local governments can do anything about. Increasingly, we can't do much about it at the state level, given recent Supreme Court decisions. If we think about the deeper origins of violence, these are also very difficult things for cities to confront. We have these expectations of local governments to solve problems that are national in scope.