Lazar, D. (1996). The frozen republic: How the Constitution is paralyzing democracy.
New York, NY: Harcourt Brace.
America is a religious society caught up in a painful contradiction. On one hand, its politics rest
on faith in the Founding Fathers—a group of planters, merchants, and political thinkers who
gathered in a stuffy tavern in Philadelphia in 1787—and the document they produced during the
course of that summer, the Constitution. These are the be-all and end-all of the American system,
the alpha and the omega. On the other hand, the faith isn't working. Problems are mushrooming,
conflicts are multiplying, and society seems increasingly out of control. As a result, Americans find
themselves in the curious position of celebrating the Constitution and founders, who comprise
America's base, yet cursing the system of politics they gave birth to. The more the roof leaks and the
beams sag, the more fervent the odes to the original architects and builders seem to grow.
This is curious—but not unprecedented. In one form or another, Americans have been
simultaneously praising the Constitution and cursing the government since virtually the moment
George Washington took office. What is different, however, is the degree. Constitution worship has
never been more fervent, while dissatisfaction with constitutional politics has never been greater.
Yet rather than attempting to work through the contradiction—rather than wondering, for instance,
whether the fact that the house is falling down doesn't reflect poorly on those who set if up-the
general tendency over the last two decades or so has been to blame anyone and everyone except the
Founders. If the original .conception is pure and perfect and it is an article of faith in America's civic
religion that it is—then the fault must lie with the subsequent generations who allowed it to be trampled
in the dust. We have betrayed the legacy by permitting politicians, the media, special interests,
minorities, etc., to have their way. Therefore, our duty as loyal subjects of the Constitution is to pick it
up, dust it off, and somehow, restore it to its original purity.
This is the way religious societies think— when confronted with the problems of the modem
world, their first instinct is to retreat to some long-lost Eden, where everything was good and clean and
honest. This book, however, is here to say it ain’t necessarily so, that Eden was never what it was
cracked up to be, and that the Founders were, never as far-seeing and all-wise as their, followers
allege. The problem with American politics, it argues, is not that they are the flawed expression of a
perfect plan, but that they are the all too faithful expression of a flawed Constitution! Where the
document devised in Philadelphia in 1787 neatly fit the needs of American society at the time, it proved
woefully inadequate to the needs of American society in subsequent decades. In 1861, the constitutional system fairly disintegrated under the pres-sure of seventy years or so of pent-up change,
unleashing one of the worst military conflicts of the entire nineteenth century. For approximately the
next three-quarters of a century, it proved to be a political straitjacket, in which even the mildest
social reform was prohibited on the grounds that it would interfere with the minority rights of bankers
and industrialists; then, following a brief golden age after World War II, it has resulted in crippling
gridlock and paralysis. The Constitution has performed this way not despite the Founders, but
because of them. They created a system in which the three branches of government were
suspended in almost perfect equipoise so that a move by one element in any one direction would
be almost immediately offset by a countermove by one or both of the others in the opposite direction.
The result was a counterdemocratic system dedicated to the virtues of staying put in the face of rising
popular pressure. The more the system refused to budge, the more the constitutional sages praised
its essential immobility.
The problem with the Constitution lies not with any single clause or paragraph but rather with
the concepts of balance and immutability, indeed with the very idea of a holy, all-powerful
Constitution. James Madison, who did more in Philadelphia than anyone else to shepherd the
Constitution through, to completion, saw the document as an anchor in a flyaway world. An anchor,
however, is precisely what is holding American society back. There are times when society needs
to fly away and leave the past behind—to cast off old assumptions, to adopt new theories, to forge
new frameworks of politics and government. This is precisely what the Madisonian Constitution was
designed to prevent and something it has succeeded all too well in doing. As a result, US society is
laboring under what is at best an eighteenth-century mode of government as it prepares to enter the
twenty-first century.
America must cast off the constraints. At the same time, it has never seemed more unequal to the
task. Society has never been more fragmented, politics have never been narrower or more
shortsighted, while the extended constitutional priesthood judges, eminent professors of constitutional
law, op-ed columnists, and so forth—has never been more dogmatic. Even as they try to choke each
other to death, liberals and conservatives have never been more united in their devotion to the secular
religion that supposedly holds society together but is in fact tearing it apart. They are like Catholic and
Protestant theologians of the sixteenth and seventeenth centuries, each one claiming to be more
faithful to the Word than the other. The outlook for reform seems grim as a consequence, which only
makes it all the more necessary. What Americans need is less faith and more thought, less
willingness to put their trust in a bygone political order and a greater realization that they, the living, are
the only ones capable of maneuvering society through the storm. Instead of beginning with the
Constitution as the essential building block, they should realize that there are no givens in this
world and that all assumptions, beginning with the most basic, must constantly be examined and
tested.
This must seem very strange to readers who have been trained from childhood to think of the
Constitution as America's rock and foundation, without which it would disintegrate into an unthinking
mob. Yet constitutional faith is a form of thoughtlessness, since it means relying on the thought of
others rather than on one's own. The alternative is to emancipate oneself from the past, to wake up
to the realization that two centuries of struggling and fighting have not been for naught and that we
know a few things the Founders didn't as a consequence. Rather than continually deferring to their
judgment, it means understanding that we are fully competent to make our way through the modern
world on our own. This is not to say we should ignore Madison, Jefferson, et al., merely that there is
no reason we should feel bound by their precepts.
In a sense, America has to fight what Jonathan Swift called "The Battle of the Books," a halfforgotten intellectual war that erupted in the l690s between those who argued that ancient
authorities were superior: because they were ancient and those who contended that, thanks to
progress and advancement, modern scholars knew more than ancient ones could ever have
imagined and that there was no reason therefore to bow to their example. The argument raged for
half a century, and if the ancients were not completely toppled in the end, at least they were dented.
Latter-day Americans have got to take up arms as well against the eighteenth-century philosophes
who wrote The Federalist Papers and created the Constitution and have been posthumously
lording it over the United States ever since. The alternative is continuing breakdown and decay.
Government in America doesn't work because it's not supposed to work. In their infinite wisdom, the
Founders created a deliberately unresponsive system in order to narrow the governmental options and
force us to seek alternative routes. Politics were dangerous; therefore, politics had to be limited and
constrained. But America cannot expect to survive much longer with a government that is inefficient
and none -too democratic by design. It is impossible to forge ahead in the late twentieth century
using governmental machinery dating from the late eighteenth. Urban conditions can only worsen,
race relations can only grow more poisonous, while the middle class can only grow more
alienated and embittered. Politics will grow more irrational and self-defeating, while the price of the
good life—that is, a nice home, good schools, a quiet street in a safe neighborhood— can only
continue its upward climb beyond the reach of all but the most affluent. Rush Limbaugh, Howard
Stern, and other demagogues of the airwaves will continue to make out like bandits, while the millions
of people who listen to them will only grow angrier and more depressed. Eventually, every other
Society caught up in such a bind has snapped. Sooner or later,
the United States will as well. The stays have already begun to fray.
Societies can regenerate, though. For those who know their English history (as all educated
Americans did once upon a time), the example that springs immediately to mind is Britain in the
early nineteenth century. After a quarter-century of intermittent warfare against revolutionary
France, the British found themselves in a predicament not altogether different from that of the United
States at the end of its half-century long crusade against the Soviet Union, The government was over its
head in debt, the political structure fairly creaked with age, and even by modern standards, the
political classes were amazingly stupid and corrupt. Rather than marching forward into the brave new
world of the nineteenth century, the ruling class showed every sign of retreating into the tired old
world of the eighteenth century, in which backwoods country squires slept with the hounds, and
judges in horsehair wigs sentenced half-grown pickpockets to the gibbet. (British politicians of the
early nineteenth century believed in the morally salutary effects of capital punishment even more
fervently than American politicians do today). The ruling class was committed to the idea that the key
to Britain's strength lay in its "Ancient Constitution" as the country's bundle of moss-backed political
institutions and traditions was known. Britain had defeated Napoleon by sticking to the Ancient
Constitution and, by jingo, it would defeat whatever the postwar era had to offer by doing so as well.
But then the unexpected occurred—the immovable moved, the reformers grew louder and more
insistent, the middle classes pricked up their ears and began to listen, and beginning in 1832, the
country embarked on a program of deep-seated constitutional reform. The squirearchy retreated,
while a new kind of politics gained a toehold, a kind of politics that was progressive, utilitarian, and
broader based. Over the next few decades, Britain went from having the worst government in Europe to
having the cleanest, the most efficient, and the most responsive. Rather than collapsing, something
that most radicals (including Jefferson) thought was likely at any moment, the country-gained a new burst
of life and went on to conquer the globe.
Regeneration was inseparable from reconstitution. In order to pick itself up by the boot straps,
British society had to overthrow the old idea, of an Ancient Constitution that was unknowable,
unapproachable, miraculous, and unmoving, the political equivalent of the laws that Moses had
brought down from the mountain top. The parallels with modern-day America could not be more
obvious. The United States is also saddled with an ancient Constitution, the oldest in the world by
now and one equally far removed from the needs of late twentieth-century society. It also has the worst
form of politics in the advanced industrial world, (a belt extending from Western Europe across
North America to Japan, New Zealand, and Australia), the most inefficient government, and the oiliest,
most self-serving politicians. Since 1994, Congress has been in the grips of Republican zealots eager to
return to the days of Ozzie and Harriet and Dwight D. Eisenhower. Police are more brutal than in
any comparable country, prisons are filled to overflowing, and social policies in general grow
harsher and more punitive with every passing year. Yet in no country is the
range of accepted political debate more narrow. A prominent Anglo-American journalist
named E. L. Godkin once remarked that the United States has,
far outstripped the rest of the world in what are called "constitutional lawyers." Our judges
and commentators have acquired the widest celebrity as skilled acid shrewd expounders of
the organic law. Their application of its provisions to the complex phenomena of our social and
political conditions have been marvels of ingenuity and erudition. But the examination and
elucidation of the principles on which governments ought to rest, one of the highest and most
interesting pursuits in which the human-understanding can engage, has generally been
neglected.... Political speculation has been regarded as an occupation fit only for French or
German "reds" or for boy debaters.
Godwin wrote these words at the height of the Civil War. For a time, it appeared amid the
passionate disorder of the 1860s that the country might actually follow his advice and embark on a
program of thoroughgoing constitutional reform. But then the Radical Republicans faltered in the
latter part of the decade and lost their grip, political energy began to recede, and the country returned
to its prewar somnolence. If they are to emerge from their latest paralysis, Americans will have to
resume the job they failed to finish in the 1860s. Rather than mindlessly cursing government and
politicians, they will have to get to the bottom of the American predicament and figure out why politics
in this country have grown so abysmal. Instead of rallying to this or that favorite son, they will have to
figure out why even the best candidates wind up being defeated by the system they have vowed
to change. Rather than relying on the Founding Fathers for answers, it means looking to
themselves—to their own intelligence, their own analytical powers, their own creative abilities.
As every schoolchild knows, the Founders had wanted a Constitution that would serve the people
as "a safeguard against the tyranny of their own passions." As Supreme Court Justice Louis
Brandeis put it in Myers v. US. (1926), "The doctrine of the separation of powers was adopted...not to
promote efficiency but to preclude the exercise of arbitrary power"—which, put another way, meant that
inefficiency was the price Americans had to pay for freedom and democracy. But there was a catch
here. How was one to evaluate a system that was inefficient by design? What output criteria could one
develop? If it was performing well, that is, efficiently, then it was performing in a way that was dangerous
and threatening. If it was performing poorly, that is, inefficiently, then it was performing well. Bad was good
and good was bad—a conundrum designed to stop even the most ardent reformer in
his tracks.
Essentially, Madison and his colleagues in Philadelphia had created a puzzle palace in which
logic was turned on its head. Or, rather, they had employed a different kind of logic, a pre-industrial
version that would prove incomprehensible to citizens of the industrial era. Rather than a simple,
straightforward analysis, therefore, this book is arranged chronologically in an attempt to show why
ideas like separation of powers and limited government acquired such a powerful hold on people in the
eighteenth century and why they proved so difficult to dislodge—even though they were so
obviously unsuited to the problems of the nineteenth and twentieth centuries. The basic theme is not
only that the Constitution is out of date but that by imposing an unchangeable political structure
on a generation that has never had an opportunity to vote on the system as a whole, it amounts to a
terrible dictatorship by the past over the present. Americans are prisoners, in effect, of one of the
most subtle yet powerful systems of restraint in history, one in which it is possible to curse the
president, hurl obscenities at Congress, and all but parade naked down Broadway, yet virtually
impossible to alter the political structure in any fundamental way. They live in a system not only of
limited government, but of limited democracy, which is why politics of late have become so suffocating
and destructive. It is like a prison with no guards and no walls, yet from which no one ever escapes.
The answer is not less democracy—which is what term limits, a balanced-budget amendment, and
other checks on legislative power represent-but more. Rather than checks and balances, the American
people need to cast off constitutional restraints imposed more than two centuries ago and use their
power as a whole to rebuild society as they see fit. This is not an invitation to lawlessness, but, quite the
contrary, a call for the democratic majority to begin refashioning society along more rational and modem
lines. Rather than less freedom, it is a plea for more, beginning with the freedom of the popular majority to
modify its political circumstances in whatever way it sees fit. Rather than submitting to an immutable
Constitution, Americans should cast off their chains and rethink their society from the ground up. They
have nothing to lose- except one of the most unresponsive political systems this side of the former Soviet
Union.