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Marci A. Hamilton

The Election of Scott Brown, the Newfound Power of Independents, and Why the Framers Would Be Smilings


Thursday, January 21, 2010

On Tuesday, January 19, the people of Massachusetts elected Scott Brown to represent them in the United States Senate. If there had been any doubt after the election of President Barack Obama, it should now be crystal-clear to all following Brown's election: Independent voters are running the political show. The bad news for the political parties is that they have been marginalized. The good news for Americans is that we have shifted closer to the dreams the Constitution's Framers held dear for this country.

The Framers' Vision for America

When the Framers gathered in Philadelphia, their charge was to fix the Articles of Confederation, which had failed to create cohesion between the states, making international trade and foreign affairs virtually impossible to coordinate. There were also severe economic problems because there was no uniform currency, and no shared fiscal policy or banking system. Times were bleak, despite the heady achievements of a decade before, when America had cut its ties to the unaccountable King George III and the English Parliament.

The Framers were supposed to simply amend the Articles of Confederation, but as they diagnosed the problems with that document, they rapidly moved toward re-creating government both for and between the states. One of the more serious faults of the Articles of Confederation lay in its allowance of the self-serving actions of elected representatives in the states. Instead of serving the larger public good for their citizens, many state legislatures turned into "vortices of corruption," in which private bills (those directed at benefiting a single citizen) took precedence over laws intended to serve the public and the public good. The reconstructed governing system set forth in the Constitution was intended to encourage elected representatives at both the state and federal level to focus on a greater horizon: that of the larger public good.

One goal of American representative government was intended to be the pursuit of a larger common good, through a system in which elected representatives were more sharply focused on solving the people's problems than on grasping for their own power. The hope was that representatives would take into account not only that which was politically expedient at the moment but also the future needs of the people.

The most pressing question in the Framers' minds was how to construct a system that deterred abuses of power and, therefore, prevented tyranny. Accordingly, the system created by the Constitution was crafted to include a number of mechanisms that were intended to discourage both individuals and government structures from serving solely their own ends: checking mechanisms, the separation of powers (between three branches; between two sovereigns, federal and state; and between church and state), and eventually rights guarantees that protected against government overreaching.

The sheer force of the temptation to convert one's delegated power into self-aggrandizement is always evident in Washington (and the state capitols). The egos, the politically expedient, ugly deals, and the partisanship are always evident, making it a minor miracle when any one member of Congress – or a state legislature -- chooses the path of public service on any given day. The parties are teeming collections of self-serving politicos, which have long since abandoned any pretense at caring for anything beyond raw power and personal agendas. Yet the terrorist attacks of 9/11 and the events that have occurred since then have brought back into focus for many Americans what government is supposed to be doing: solving the hard problems.

Why the Obama Administration and the Brown Election Vindicate the Framers' Vision

President Obama was elected because many voters, like myself, chose to vote for the candidate, and not the Party, at a time of tremendous need. The country's problems were -- and they continue to be -- severe: an anemic economy devastated by overreaching among lenders and Wall Street shenanigans, and a hell-bent religiously-fanatical enemy determined to destroy American values here and elsewhere. The Republicans had no answers, while Obama offered a calm demeanor, a sterling education, and a practical bent. We voted for him assuming that he would be more interested in solving America's problems than in special-interest deals and political agendas – that he would reflect the Framers' ideal leader. We fundamentally erred, and the Framers were correct. Power corrupts.

Instead of training his considerable talents on the extremely hard issues before him, Obama marched proudly into Washington as though he had a mandate to change America overnight and threw down the gauntlet of top-to-bottom health care reform before he even began to consider what to do about Afghanistan. Sadly, Obama has abandoned his earlier pragmatism for a maniacal effort to pass humongous, centralized health-care reform. And he has abandoned all principle in the process.

If he had had greater wisdom and less hubris, then the economic situation would have persuaded him to scale down his Party's grandiose designs for health care. Yet, he made no adjustment in his Party's pre-election legislative agenda for the realities of dying small businesses and families cowering under economic siege. With recent events confirming that we are in serious danger of terrorist attack, as I discussed in a previous column, compounding the economic debacle, Obama has chosen to expend his energy on a complex, crazily-detailed legislative proposal with so many moving parts that no one understands its manifold ramifications. No one.

In addition, Obama's Administration has pursued a maddeningly opaque procedure for changing this crucial system – a system that personally and intimately affects every American. Instead of Obama's promised public debate for all to see, unprincipled backroom deals have been cut. The most recent of these was an old-fashioned union payoff, which would shield union members from new health-care taxes while imposing those taxes on non-union workers with identical plans. Obama saved Wall Street, which is now glorying in its end-of-year bonuses, from the consequences of its actions, and he kicked back tax savings to the behemoth unions. Yet, at the same time, he has thrown under the bus the small businesses that barely survived the economic crash and that have been taking care of their employees by providing good health care. None of this is what the independent-minded voters could have imagined when we voted for him.

Even before the Scott Brown election, the President should have been humbled. The people are disillusioned: In Virginia and New Jersey, Republican candidates for Governor beat incumbent Democrats. The self-named "Tea Party" movement has challenged the big government, huge deficit spending, and increased taxes being simultaneously embraced by the Obama Administration. Now Brown has defeated Massachusetts Attorney General Martha Coakley, in the most Democratic of states. But whom did Brown thank most copiously for his victory – and most appropriately? Not the Republicans, but rather the Independents of Massachusetts, who actually outnumber Democrats.

All politics is local, so treating Washington and the White House as the only backdrop to this Massachusetts election is a mistake. Brown served 19 years in the Massachusetts Senate, and he has described his role there as being someone who always sought to solve the problems the people of Massachusetts faced, and someone who was interested in whatever solutions were offered, whether from political friend or foe. When I heard those words from Brown the morning after his victory, I imagined the Framers starting to smile. Almost immediately, though, I had to remind myself that it is far too early to know whether Brown will fulfill the Framers' ideals or the Framers' fears.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is

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