In two recent posts, I have explored the effects of nonoriginalism in the separation of powers. Here I want to mention several ways in which such nonoriginalism has contributed to the increasing polarization of our society, by permitting the political branches to avoid having to compromise.
First, as I argued in one of these posts, the delegation of legislative authority to the President leads to polarization. Such delegations allow the President to decide on policy rather than having the Congress and the President do so through the passage of laws. In the latter case, compromise would be needed to pass laws, which would lead to less polarization.
Second, the Supreme Court’s updating of the Constitution through nonoriginalist interpretation leads to polarization. With such updating, a majority of the Court can allow one of the political parties or factions to get its way in constitutional law. By contrast, without such updating, constitutional change would require the passage of constitutional amendments, which require compromise to secure the supermajorities necessary to pass them.
Third, the broadening of the President’s power to enter into executive agreements rather than treaties again avoids the need for compromise. The President gets to decide alone on the agreement instead of requiring a vote of two thirds of the Senate, which can normally only be obtained through political compromise.
Fourth, the President’s ability under nonoriginalism to initiate wars on his own authority also creates the potential (although it may not have been realized yet) for polarization. If the Congress must authorize the use of force, it might do so only with constraints. Without the need for such constraints, the President can take more extreme actions on his own authority.
I do not mean to claim that departures from the original meaning of the Constitution are the only source of polarization. But I believe they are an important and neglected source.