The Washington PostDemocracy Dies in Darkness

The Founders constructed our government to foster inaction

Why Democrats have struggled to implement their agenda

Sen. Kyrsten Sinema (D-Ariz.) walks to the Senate floor after attending a Democratic policy luncheon on Capitol Hill on Oct. 26. (Jabin Botsford/The Washington Post)

We’re getting used to the game of block-the-bill. Most recently, the refusal of Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to agree to abolish the filibuster to pass voting rights legislation, while also rejecting some elements of Democratic proposals on health care and infrastructure, points to the power of individual veto players in the Senate. But there are actually four institutional “veto players” in the Constitution — the House, Senate, presidency and the Supreme Court, all designed to put institutional brakes on the popular will. Inaction is the rule, not the exception — something the two-party system has exacerbated.

Democracy was a dirty word at the Constitutional Convention in 1787. Alexander Hamilton said that the people were “turbulent and changing” and thus concluded that “they seldom judge or determine right.” Even his rival Thomas Jefferson didn’t trust common men, especially debtors and urban workers, whom he wrote were “the instruments by which the liberties of a country are generally overturned.” And so, believing liberty to be synonymous with property ownership, the Constitution’s framers collectively decided that protecting property rights — specifically enslaved property — was more important than making the legislative process responsive to the people. To do this, the drafters of the Constitution ensured that each of the federal government’s three branches could halt legislation.

The word veto doesn’t appear in the Constitution, but ever since George Washington, presidents have had the power to veto acts of Congress, which the House and Senate can override with a two-thirds majority. Today, as has been the case since the 18th century, the House and Senate each exercises a veto over federal legislation since both chambers must pass bills before they go to the president’s desk. In 1803, in Marbury v. Madison, the Supreme Court also asserted its power to veto federal legislation, when it squirreled out of a showdown with Jefferson over judicial appointments by declaring a portion of the 1789 Judiciary Act unconstitutional. The court has maintained this privilege ever since.

Initially, vetoes were rare because politics revolved around regional interests and national figures rather than institutionalized political parties. The first six presidents used the veto just 10 times. When in 1803 Jefferson unconstitutionally bought Louisiana from Napoleon using a dodgy British loan, neither the Senate nor the Supreme Court stopped him. New Englanders protested, but the purchase was popular everywhere else in the country. Chief Justice John Marshall — a Virginia Federalist and an enslaver — had no problem with a real estate deal that expanded federal power and, probably, slavery.

Presidential vetoes were even more rare in an “Era of Good Feeling” after the War of 1812. President James Monroe used his veto just once, and his successor John Quincy Adams didn’t veto a single bill.

Until the 1850s, the Supreme Court generally built up federal power rather than vetoing federal law. The Marshall court’s landmark decision in Fletcher v. Peck in 1810 struck down a Georgia law that voided fraudulent sales of Native American land, citing the Constitution’s Contract Clause to re-legalize the land grab. In 1819, in McCulloch v. Maryland, the court struck down a Maryland tax on paper money issued by the Bank of the United States, affirming that Congress had the power to establish a central bank under the Necessary and Proper Clause.

The institutionalization of the two-party system changed the game and President Andrew Jackson showed the country how vetoing legislation, even popular legislation, could be a recipe for political gain. He co-founded the Democratic Party on opposition to a central bank, federal internal improvements and national tariffs. Jackson issued more vetoes than all previous presidents combined, unleashing state banks, state and private infrastructure projects and liberalizing trade.

And yet, during the 1850s, compromise became a mantle of statesmanship, even if compromisers kept millions of people enslaved and Congress refused to halt the interstate sales of Black Americans. But the Civil War and the emancipation of 4 million African Americans called for a reconstituting of the nation. And that meant pivoting around the veto players.

At first, congressional Republicans were successful. Acting without Confederate and ex-Confederate members, the United States adopted the 13th and 14th amendments abolishing slavery and guaranteeing equal protection of the laws. When President Andrew Johnson sought to veto Reconstruction legislation, Republican supermajorities overrode more than half of his attempts. Johnson succeeded in killing Colorado statehood, but Congress overrode vetoes of the Civil Rights Act of 1866, the Reconstruction Acts, legislation that reduced the Supreme Court from 10 to 7 seats and a bill reauthorizing the Freedmen’s Bureau.

But this congressional defense against vetoes was short-lived. When the conservative Democratic Party assaulted Black voting rights on the state level and took over the House in 1876, Reconstruction came to a screeching halt — and soon it was the Supreme Court that asserted its veto power by reinterpreting the 14th Amendment to protect corporations, gutting federal civil rights protections and paving the way for Jim Crow rule. In the 1890s, Southern Democrats in the Senate honed obstructionist tactics with some of the first successful filibusters aimed at blocking protections for Black voting rights. In the early 20th century, the Supreme Court vetoed protective labor legislation and other progressive measures.

During the 1930s, presidential and court veto power clashed. During the Great Depression, President Franklin D. Roosevelt’s Democratic Party used its electoral mandate to manage capitalism and promote relative economic equality. The Roosevelt administration’s New Deal legislation protected unions and farm businesses, instituted social insurance, promoted homeownership, expanded access to higher education and built infrastructure. It also ensured that conservative Southern Democrats got plums like hydroelectric power without interfering with Jim Crow laws enforcing disenfranchisement and racial segregation.

The Supreme Court’s conservative majority vetoed key provisions of the National Recovery Administration and Agricultural Adjustment Act — striking down more federal legislation in a shorter time than ever before or since. Roosevelt fought back, attempting to force retirements and pack the court. The push failed, but Roosevelt became an aggressive veto player himself to control his own congressional Democratic majority. In total, Roosevelt, the nation’s longest-serving president, issued a record of 635 vetoes, a sum equal to a quarter of vetoes cast by all other American presidents.

In the 1960s, a generation after the New Deal, President Lyndon B. Johnson used large Democratic congressional majorities to pass a raft of civil rights and Great Society legislation. The then-liberal Supreme Court, led by Chief Justice Earl Warren, endorsed expanded civil liberties and anti-discrimination laws. Johnson spent Democratic political capital on these principled goals, but in doing so he prophesied that his party “may have lost the South for a generation.”

After the 1968 election of Richard M. Nixon, and with the defection of conservative White Democrats to the Republican Party over the next half-century, no president or party was able to maneuver around the four veto players as obstruction became a prevailing partisan tactic. Republican control of Congress during the last six years of Bill Clinton’s presidency and of the House during the last six years of Barack Obama’s presidency narrowed the scope of legislation, as did Democratic control of Congress for much of Ronald Reagan’s, George H.W. Bush’s and George W. Bush’s presidencies.

Meanwhile, although the Supreme Courts led by Chief Justices William H. Rehnquist and John R. Roberts Jr. have moved jurisprudence incrementally to the right, the Roberts court has so far refused to strike down some liberal accomplishments — notably the Affordable Care Act and the court’s own legalization of same-sex marriage.

But today’s legislative sausage factory evokes the Founders’ recipe for federal inaction — and their suspicion of democracy. The latter, however, could position Republicans to circumvent all of the veto points in the years to come. Racial gerrymandering in states such as Texas, Georgia-style voter suppression laws and Arizona-style partisan election commissions all could clear a path to Republican congressional majorities and recapturing the White House, to go with a 6-3 conservative majority on the Supreme Court. That would create an unprecedented future in which all four veto players in the House, Senate, presidency and Supreme Court could be Republican by 2025. Unless Manchin and Sinema yield on the filibuster, their obstruction of their own party’s agenda on voting rights may well dismantle the checks and balances the Founders instituted, which have stymied their own party for most of the past five decades.

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